Mathis v. United States , 195 L. Ed. 2d 604 ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MATHIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 15–6092. Argued April 26, 2016—Decided June 23, 2016
The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory
minimum sentence on a defendant convicted of being a felon in pos-
session of a firearm who also has three prior state or federal convic-
tions “for a violent felony,” including “burglary, arson, or extortion.”
18 U. S. C. §§924(e)(1), (e)(2)(B)(ii). To determine whether a prior
conviction is for one of those listed crimes, courts apply the “categori-
cal approach”—they ask whether the elements of the offense forming
the basis for the conviction sufficiently match the elements of the ge-
neric (or commonly understood) version of the enumerated crime.
See Taylor v. United States, 495 U. S. 575, 600–601. “Elements” are
the constituent parts of a crime’s legal definition, which must be
proved beyond a reasonable doubt to sustain a conviction; they are
distinct from “facts,” which are mere real-world things—extraneous
to the crime’s legal requirements and thus ignored by the categorical
approach.
When a statute defines only a single crime with a single set of ele-
ments, application of the categorical approach is straightforward.
But when a statute defines multiple crimes by listing multiple, alter-
native elements, the elements-matching required by the categorical
approach is more difficult. To decide whether a conviction under
such a statute is for a listed ACCA offense, a sentencing court must
discern which of the alternative elements was integral to the defend-
ant’s conviction. That determination is made possible by the “modi-
fied categorical approach,” which permits a court to look at a limited
class of documents from the record of a prior conviction to determine
what crime, with what elements, a defendant was convicted of before
comparing that crime’s elements to those of the generic offense. See,
e.g., Shepard v. United States, 544 U. S. 13, 26. This case involves a
2 MATHIS v. UNITED STATES
Syllabus
different type of alternatively worded statute—one that defines only
one crime, with one set of elements, but which lists alternative factu-
al means by which a defendant can satisfy those elements.
Here, petitioner Richard Mathis pleaded guilty to being a felon in
possession of a firearm. Because of his five prior Iowa burglary con-
victions, the Government requested an ACCA sentence enhancement.
Under the generic offense, burglary requires unlawful entry into a
“building or other structure.” Taylor, 495 U. S., at 598. The Iowa
statute, however, reaches “any building, structure, [or] land, water,
or air vehicle.” Iowa Code §702.12. Under Iowa law, that list of plac-
es does not set out alternative elements, but rather alternative
means of fulfilling a single locational element.
The District Court applied the modified categorical approach,
found that Mathis had burgled structures, and imposed an enhanced
sentence. The Eighth Circuit affirmed. Acknowledging that the Iowa
statute swept more broadly than the generic statute, the court de-
termined that, even if “structures” and “vehicles” were not separate
elements but alternative means of fulfilling a single element, a sen-
tencing court could still invoke the modified categorical approach.
Because the record showed that Mathis had burgled structures, the
court held, the District Court’s treatment of Mathis’s prior convic-
tions as ACCA predicates was proper.
Held: Because the elements of Iowa’s burglary law are broader than
those of generic burglary, Mathis’s prior convictions cannot give rise
to ACCA’s sentence enhancement. Pp. 7–19.
(a) This case is resolved by this Court’s precedents, which have re-
peatedly held, and in no uncertain terms, that a state crime cannot
qualify as an ACCA predicate if its elements are broader than those
of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. The
“underlying brute facts or means” by which the defendant commits
his crime, Richardson v. United States, 526 U. S. 813, 817, make no
difference; even if the defendant’s conduct, in fact, fits within the def-
inition of the generic offense, the mismatch of elements saves him
from an ACCA sentence. ACCA requires a sentencing judge to look
only to “the elements of the [offense], not to the facts of [the] defend-
ant’s conduct.” Taylor, 495 U. S., at 601.
This Court’s cases establish three basic reasons for adhering to an
elements-only inquiry. First, ACCA’s text, which asks only about a
defendant’s “prior convictions,” indicates that Congress meant for the
sentencing judge to ask only whether “the defendant had been con-
victed of crimes falling within certain categories,” id., at 600, not
what he had done. Second, construing ACCA to allow a sentencing
judge to go any further would raise serious Sixth Amendment con-
cerns because only a jury, not a judge, may find facts that increase
Cite as: 579 U. S. ____ (2016) 3
Syllabus
the maximum penalty. See Apprendi v. New Jersey, 530 U. S. 466,
490. And third, an elements-focus avoids unfairness to defendants,
who otherwise might be sentenced based on statements of “non-
elemental fact[s]” that are prone to error because their proof is un-
necessary to a conviction. Descamps v. United States, 570 U. S. ___,
___.
Those reasons remain as strong as ever when a statute, like Iowa’s
burglary statute, lists alternative means of fulfilling one (or more) of
a crime’s elements. ACCA’s term “convictions” still supports an ele-
ments-based inquiry. The Sixth Amendment problems associated
with a court’s exploration of means rather than elements do not abate
in the face of a statute like Iowa’s: Alternative factual scenarios re-
main just that, and thus off-limits to sentencing judges. Finally, a
statute’s listing of disjunctive means does nothing to mitigate the
possible unfairness of basing an increased penalty on something not
legally necessary to a prior conviction. Accordingly, whether means
are listed in a statute or not, ACCA does not care about them; rather,
its focus, as always, remains on a crime’s elements. Pp. 7–16.
(b) The first task for a court faced with an alternatively phrased
statute is thus to determine whether the listed items are elements or
means. That threshold inquiry is easy here, where a State Supreme
Court ruling answers the question. A state statute on its face could
also resolve the issue. And if state law fails to provide clear answers,
the record of a prior conviction itself might prove useful to determin-
ing whether the listed items are elements of the offense. If such rec-
ord materials do not speak plainly, a sentencing judge will be unable
to satisfy “Taylor’s demand for certainty.” Shepard, 544 U. S., at 21.
But between the record and state law, that kind of indeterminacy
should prove more the exception than the rule. Pp. 16–18.
786 F. 3d 1068, reversed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. KENNEDY,
J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dis-
senting opinion, in which GINSBURG, J., joined. ALITO, J., filed a dis-
senting opinion.
Cite as: 579 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–6092
_________________
RICHARD MATHIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 23, 2016]
JUSTICE KAGAN delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA or Act), 18
U. S. C. §924(e), imposes a 15-year mandatory minimum
sentence on certain federal defendants who have three
prior convictions for a “violent felony,” including “burglary,
arson, or extortion.” To determine whether a past convic-
tion is for one of those offenses, courts compare the ele-
ments of the crime of conviction with the elements of the
“generic” version of the listed offense—i.e., the offense as
commonly understood. For more than 25 years, our deci-
sions have held that the prior crime qualifies as an ACCA
predicate if, but only if, its elements are the same as, or
narrower than, those of the generic offense. The question
in this case is whether ACCA makes an exception to
that rule when a defendant is convicted under a statute
that lists multiple, alternative means of satisfying one
(or more) of its elements. We decline to find such an
exception.
I
A
ACCA prescribes a 15-year mandatory minimum sen-
tence if a defendant is convicted of being a felon in posses-
2 MATHIS v. UNITED STATES
Opinion of the Court
sion of a firearm following three prior convictions for a
“violent felony.” §924(e)(1). (Absent that sentence en-
hancement, the felon-in-possession statute sets a 10-year
maximum penalty. See §924(a)(2).) ACCA defines the
term “violent felony” to include any felony, whether state
or federal, that “is burglary, arson, or extortion.”
§924(e)(2)(B)(ii). In listing those crimes, we have held,
Congress referred only to their usual or (in our terminol-
ogy) generic versions—not to all variants of the offenses.
See Taylor v. United States, 495 U. S. 575, 598 (1990).
That means as to burglary—the offense relevant in this
case—that Congress meant a crime “contain[ing] the
following elements: an unlawful or unprivileged entry into
. . . a building or other structure, with intent to commit a
crime.” Ibid.To determine whether a prior conviction is for generic
burglary (or other listed crime) courts apply what is
known as the categorical approach: They focus solely on
whether the elements of the crime of conviction sufficiently
match the elements of generic burglary, while ignoring
the particular facts of the case. See id., at 600–601. Dis-
tinguishing between elements and facts is therefore cen-
tral to ACCA’s operation. “Elements” are the “constituent
parts” of a crime’s legal definition—the things the “prose-
cution must prove to sustain a conviction.” Black’s Law
Dictionary 634 (10th ed. 2014). At a trial, they are what
the jury must find beyond a reasonable doubt to convict
the defendant, see Richardson v. United States, 526 U. S.
813, 817 (1999); and at a plea hearing, they are what the
defendant necessarily admits when he pleads guilty, see
McCarthy v. United States, 394 U. S. 459, 466 (1969).
Facts, by contrast, are mere real-world things—
extraneous to the crime’s legal requirements. (We have
sometimes called them “brute facts” when distinguishing
them from elements. Richardson, 526 U. S., at 817.) They
are “circumstance[s]” or “event[s]” having no “legal effect
Cite as: 579 U. S. ____ (2016) 3
Opinion of the Court
[or] consequence”: In particular, they need neither be
found by a jury nor admitted by a defendant. Black’s Law
Dictionary 709. And ACCA, as we have always under-
stood it, cares not a whit about them. See, e.g., Taylor,
495 U. S., at 599–602. A crime counts as “burglary” under
the Act if its elements are the same as, or narrower than,
those of the generic offense. But if the crime of conviction
covers any more conduct than the generic offense, then it
is not an ACCA “burglary”—even if the defendant’s actual
conduct (i.e., the facts of the crime) fits within the generic
offense’s boundaries.
The comparison of elements that the categorical ap-
proach requires is straightforward when a statute sets out
a single (or “indivisible”) set of elements to define a single
crime. The court then lines up that crime’s elements
alongside those of the generic offense and sees if they
match. So, for example, this Court found that a California
statute swept more broadly than generic burglary because
it criminalized entering a location (even if lawfully) with
the intent to steal, and thus encompassed mere shoplift-
ing. See id., at 591; Descamps v. United States, 570 U. S.
___, ___–___ (2013) (slip op., at 5–6). Accordingly, no
conviction under that law could count as an ACCA predi-
cate, even if the defendant in fact made an illegal entry
and so committed burglary in its generic form. See id., at
___–___ (slip op., at 22–23).
Some statutes, however, have a more complicated
(sometimes called “divisible”) structure , making the com-
parison of elements harder. Id., at ___ (slip op., at 5). A
single statute may list elements in the alternative, and
thereby define multiple crimes. Suppose, for example,
that the California law noted above had prohibited “the
lawful entry or the unlawful entry” of a premises with
intent to steal, so as to create two different offenses, one
more serious than the other. If the defendant were con-
victed of the offense with unlawful entry as an element,
4 MATHIS v. UNITED STATES
Opinion of the Court
then his crime of conviction would match generic burglary
and count as an ACCA predicate; but, conversely, the
conviction would not qualify if it were for the offense with
lawful entry as an element. A sentencing court thus re-
quires a way of figuring out which of the alternative ele-
ments listed—lawful entry or unlawful entry—was inte-
gral to the defendant’s conviction (that is, which was
necessarily found or admitted). See id., at ___ (slip op., at
6). To address that need, this Court approved the “modi-
fied categorical approach” for use with statutes having
multiple alternative elements. See, e.g., Shepard v. United
States, 544 U. S. 13, 26 (2005). Under that approach, a
sentencing court looks to a limited class of documents (for
example, the indictment, jury instructions, or plea agree-
ment and colloquy) to determine what crime, with what
elements, a defendant was convicted of. See ibid.; Taylor,
495 U. S., at 602. The court can then compare that crime,
as the categorical approach commands, with the relevant
generic offense.
This case concerns a different kind of alternatively
phrased law: not one that lists multiple elements disjunc-
tively, but instead one that enumerates various factual
means of committing a single element. See generally
Schad v. Arizona, 501 U. S. 624, 636 (1991) (plurality
opinion) (“[L]egislatures frequently enumerate alternative
means of committing a crime without intending to define
separate elements or separate crimes”). To use a hypo-
thetical adapted from two of our prior decisions, suppose a
statute requires use of a “deadly weapon” as an element of
a crime and further provides that the use of a “knife, gun,
bat, or similar weapon” would all qualify. See Descamps,
570 U. S., at ___ (slip op., at 16); Richardson, 526 U. S., at
817. Because that kind of list merely specifies diverse
means of satisfying a single element of a single crime—or
otherwise said, spells out various factual ways of commit-
ting some component of the offense—a jury need not find
Cite as: 579 U. S. ____ (2016) 5
Opinion of the Court
(or a defendant admit) any particular item: A jury could
convict even if some jurors “conclude[d] that the defendant
used a knife” while others “conclude[d] he used a gun,”
so long as all agreed that the defendant used a “deadly
weapon.” Ibid.; see Descamps, 570 U. S., at ___ (slip op.,
at 14) (describing means, for this reason, as “legally extra-
neous circumstances”). And similarly, to bring the discus-
sion back to burglary, a statute might—indeed, as soon
discussed, Iowa’s burglary law does—itemize the various
places that crime could occur as disjunctive factual scenar-
ios rather than separate elements, so that a jury need not
make any specific findings (or a defendant admissions) on
that score.
The issue before us is whether ACCA treats this kind of
statute as it does all others, imposing a sentence en-
hancement only if the state crime’s elements correspond to
those of a generic offense—or instead whether the Act
makes an exception for such a law, so that a sentence can
be enhanced when one of the statute’s specified means
creates a match with the generic offense, even though the
broader element would not.
B
Petitioner Richard Mathis pleaded guilty to being a
felon in possession of a firearm. See §922(g). At sentenc-
ing, the Government asked the District Court to impose
ACCA’s 15-year minimum penalty based on Mathis’s five
prior convictions for burglary under Iowa law.
Iowa’s burglary statute, all parties agree, covers more
conduct than generic burglary does. See Brief for Peti-
tioner 36; Brief for United States 44. The generic offense
requires unlawful entry into a “building or other struc-
ture.” Taylor, 495 U. S., at 598; supra, at 2. Iowa’s stat-
ute, by contrast, reaches a broader range of places: “any
building, structure, [or] land, water, or air vehicle.” Iowa
Code §702.12 (2013) (emphasis added). And those listed
6 MATHIS v. UNITED STATES
Opinion of the Court
locations are not alternative elements, going toward the
creation of separate crimes. To the contrary, they lay out
alternative ways of satisfying a single locational element,
as the Iowa Supreme Court has held: Each of the terms
serves as an “alternative method of committing [the]
single crime” of burglary, so that a jury need not agree on
which of the locations was actually involved. State v.
Duncan, 312 N. W. 2d 519, 523 (Iowa 1981); see State v.
Rooney, 862 N. W. 2d 367, 376 (Iowa 2015) (discussing the
single “broadly phrased . . . element of place” in Iowa’s
burglary law). In short, the statute defines one crime,
with one set of elements, broader than generic burglary—
while specifying multiple means of fulfilling its locational
element, some but not all of which (i.e., buildings and
other structures, but not vehicles) satisfy the generic
definition.
The District Court imposed an ACCA enhancement on
Mathis after inspecting the records of his prior convictions
and determining that he had burgled structures, rather
than vehicles. See App. 34–35. The Court of Appeals for
the Eighth Circuit affirmed. 786 F. 3d 1068 (2015). It
acknowledged that Iowa’s burglary statute, by covering
vehicles in addition to structures, swept more broadly
than generic burglary. See id., at 1074. But it noted that
if structures and vehicles were separate elements, each
part of a different crime, then a sentencing court could
invoke the modified categorical approach and look to old
record materials to see which of those crimes the defend-
ant had been convicted of. See id., at 1072–1074. And the
Court of Appeals thought nothing changed if structures
and vehicles were not distinct elements but only alterna-
tive means: “Whether [such locations] amount to alterna-
tive elements or merely alternative means to fulfilling an
element,” the Eighth Circuit held, a sentencing court
“must apply the modified categorical approach” and in-
spect the records of prior cases. Id., at 1075. If the court
Cite as: 579 U. S. ____ (2016) 7
Opinion of the Court
found from those materials that the defendant had in fact
committed the offense in a way that satisfied the defini-
tion of generic burglary—here, by burgling a structure
rather than a vehicle—then the court should treat the
conviction as an ACCA predicate. And that was so, the
Court of Appeals stated, even though the elements of the
crime of conviction, in encompassing both types of loca-
tions, were broader than those of the relevant generic
offense. See id., at 1074–1075. In this circumstance, the
court thus found, ACCA’s usual elements-based inquiry
would yield to a facts-based one.
That decision added to a Circuit split over whether
ACCA’s general rule—that a defendant’s crime of convic-
tion can count as a predicate only if its elements match
those of a generic offense—gives way when a statute
happens to list various means by which a defendant can
satisfy an element.1 We granted certiorari to resolve that
division, 577 U. S. ___ (2016), and now reverse.
II
A
As just noted, the elements of Mathis’s crime of convic-
tion (Iowa burglary) cover a greater swath of conduct than
the elements of the relevant ACCA offense (generic bur-
glary). See supra, at 5–6. Under our precedents, that
undisputed disparity resolves this case. We have often
held, and in no uncertain terms, that a state crime cannot
qualify as an ACCA predicate if its elements are broader
than those of a listed generic offense. See, e.g., Taylor, 495
U. S., at 602. How a given defendant actually perpetrated
the crime—what we have referred to as the “underlying
——————
1 Compare 786 F. 3d 1068 (CA8 2015) (case below) (recognizing such
an exception); United States v. Ozier, 796 F. 3d 597 (CA6 2015) (same);
United States v. Trent, 767 F. 3d 1046 (CA10 2014) (same), with Ren-
don v. Holder, 764 F. 3d 1077 (CA9 2014) (rejecting that exception);
Omargharib v. Holder, 775 F. 3d 192 (CA4 2014) (same).
8 MATHIS v. UNITED STATES
Opinion of the Court
brute facts or means” of commission, Richardson, 526
U. S., at 817—makes no difference; even if his conduct fits
within the generic offense, the mismatch of elements saves
the defendant from an ACCA sentence. Those longstand-
ing principles, and the reasoning that underlies them,
apply regardless of whether a statute omits or instead
specifies alternative possible means of commission. The
itemized construction gives a sentencing court no special
warrant to explore the facts of an offense, rather than to
determine the crime’s elements and compare them with
the generic definition.
Taylor set out the essential rule governing ACCA cases
more than a quarter century ago. All that counts under
the Act, we held then, are “the elements of the statute of
conviction.” 495 U. S., at 601. So, for example, the label a
State assigns to a crime—whether “burglary,” “breaking
and entering,” or something else entirely—has no rele-
vance to whether that offense is an ACCA predicate. See
id., at 590–592. And more to the point here: The same is
true of “the particular facts underlying [the prior] convic-
tions”—the means by which the defendant, in real life,
committed his crimes. Id., at 600. That rule can seem
counterintuitive: In some cases, a sentencing judge knows
(or can easily discover) that the defendant carried out a
“real” burglary, even though the crime of conviction also
extends to other conduct. No matter. Under ACCA, Tay-
lor stated, it is impermissible for “a particular crime [to]
sometimes count towards enhancement and sometimes
not, depending on the facts of the case.” Id., at 601. Ac-
cordingly, a sentencing judge may look only to “the ele-
ments of the [offense], not to the facts of [the] defendant’s
conduct.” Ibid.That simple point became a mantra in our subsequent
ACCA decisions.2 At the risk of repetition (perhaps down-
——————
2 So too in our decisions applying the categorical approach outside the
Cite as: 579 U. S. ____ (2016) 9
Opinion of the Court
right tedium), here are some examples. In Shepard:
ACCA “refers to predicate offenses in terms not of prior
conduct but of prior ‘convictions’ and the ‘element[s]’ of
crimes.” 544 U. S., at 19 (alteration in original). In James
v. United States: “[W]e have avoided any inquiry into the
underlying facts of [the defendant’s] particular offense,
and have looked solely to the elements of [burglary] as
defined by [state] law.” 550 U. S. 192, 214 (2007). In
Sykes v. United States: “[W]e consider [only] the elements
of the offense[,] without inquiring into the specific conduct
of this particular offender.” 564 U. S. 1, 7 (2011) (quoting
James, 550 U. S., at 202; emphasis in original). And most
recently (and tersely) in Descamps: “The key [under
ACCA] is elements, not facts.” 570 U. S., at ___ (slip op.,
at 5).
Our decisions have given three basic reasons for adher-
ing to an elements-only inquiry. First, ACCA’s text favors
that approach. By enhancing the sentence of a defendant
who has three “previous convictions” for generic burglary,
§924(e)(1)—rather than one who has thrice committed
that crime—Congress indicated that the sentencer should
ask only about whether “the defendant had been convicted
of crimes falling within certain categories,” and not about
what the defendant had actually done. Taylor, 495 U. S.,
at 600. Congress well knows how to instruct sentencing
judges to look into the facts of prior crimes: In other stat-
utes, using different language, it has done just that. See
United States v. Hayes, 555 U. S. 415, 421 (2009) (conclud-
ing that the phrase “an offense . . . committed” charged
sentencers with considering non-elemental facts); Nijha-
wan v. Holder, 557 U. S. 29, 36 (2009) (construing an
——————
ACCA context—most prominently, in immigration cases. See, e.g.,
Kawashima v. Holder, 565 U. S. 478, 482–483 (2012) (stating that a
judge must look to the “formal element[s] of a conviction[,] rather than
to the specific facts underlying the crime,” in deciding whether to
deport an alien for committing an “aggravated felony”).
10 MATHIS v. UNITED STATES
Opinion of the Court
immigration statute to “call[ ] for a ‘circumstance-specific,’
not a ‘categorical’ interpretation”). But Congress chose
another course in ACCA, focusing on only “the elements of
the statute of conviction.” Taylor, 495 U. S., at 601.
Second, a construction of ACCA allowing a sentencing
judge to go any further would raise serious Sixth Amend-
ment concerns. This Court has held that only a jury, and
not a judge, may find facts that increase a maximum
penalty, except for the simple fact of a prior conviction.
See Apprendi v. New Jersey, 530 U. S. 466, 490 (2000).
That means a judge cannot go beyond identifying the
crime of conviction to explore the manner in which the
defendant committed that offense. See Shepard, 544
U. S., at 25 (plurality opinion); id., at 28 (THOMAS, J.,
concurring in part and concurring in judgment) (stating
that such an approach would amount to “constitutional
error”). He is prohibited from conducting such an inquiry
himself; and so too he is barred from making a disputed
determination about “what the defendant and state judge
must have understood as the factual basis of the prior
plea” or “what the jury in a prior trial must have accepted
as the theory of the crime.” See id., at 25 (plurality opin-
ion); Descamps, 570 U. S., at ___ (slip op., at 14). He can
do no more, consistent with the Sixth Amendment, than
determine what crime, with what elements, the defendant
was convicted of.
And third, an elements-focus avoids unfairness to de-
fendants. Statements of “non-elemental fact” in the rec-
ords of prior convictions are prone to error precisely be-
cause their proof is unnecessary. Id., at ___ (slip op., at
15). At trial, and still more at plea hearings, a defendant
may have no incentive to contest what does not matter
under the law; to the contrary, he “may have good reason
not to”—or even be precluded from doing so by the court.
Ibid. When that is true, a prosecutor’s or judge’s mistake
as to means, reflected in the record, is likely to go uncor-
Cite as: 579 U. S. ____ (2016) 11
Opinion of the Court
rected. See ibid.3 Such inaccuracies should not come back
to haunt the defendant many years down the road by
triggering a lengthy mandatory sentence.
Those three reasons stay as strong as ever when a stat-
ute, instead of merely laying out a crime’s elements, lists
alternative means of fulfilling one (or more) of them.
ACCA’s use of the term “convictions” still supports an
elements-based inquiry; indeed, that language directly
refutes an approach that would treat as consequential a
statute’s reference to factual circumstances not essential
to any conviction. Similarly, the Sixth Amendment prob-
lems associated with a court’s exploration of means rather
than elements do not abate in the face of a statute like
Iowa’s: Whether or not mentioned in a statute’s text,
alternative factual scenarios remain just that—and so
remain off-limits to judges imposing ACCA enhancements.
And finally, a statute’s listing of disjunctive means does
nothing to mitigate the possible unfairness of basing an
increased penalty on something not legally necessary to a
prior conviction. Whatever the statute says, or leaves out,
about diverse ways of committing a crime makes no differ-
ence to the defendant’s incentives (or lack thereof ) to
contest such matters.
For these reasons, the court below erred in applying the
——————
3 To see the point most clearly, consider an example arising in the
immigration context: A defendant charged under a statute that crimi-
nalizes “intentionally, knowingly, or recklessly” assaulting another—as
exists in many States, see, e.g., Tex. Penal Code Ann. §22.01(a)(1) (West
Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor’s
statement that he committed the crime intentionally (as opposed to
recklessly) if those mental states are interchangeable means of satisfy-
ing a single mens rea element. But such a statement, if treated as
reliable, could make a huge difference in a deportation proceeding years
in the future, because an intentional assault (unlike a reckless one)
qualifies as a “crime involving moral turpitude,” and so requires re-
moval from the country. See In re Gomez-Perez, No. A200–958–511,
p. 2 (BIA 2014).
12 MATHIS v. UNITED STATES
Opinion of the Court
modified categorical approach to determine the means by
which Mathis committed his prior crimes. 786 F. 3d, at
1075. ACCA, as just explained, treats such facts as irrele-
vant: Find them or not, by examining the record or any-
thing else, a court still may not use them to enhance a
sentence. And indeed, our cases involving the modified
categorical approach have already made exactly that
point. “[T]he only [use of that approach] we have ever
allowed,” we stated a few Terms ago, is to determine
“which element[s] played a part in the defendant’s convic-
tion.” Descamps, 570 U. S., at ___, ___ (slip op., at 5, 8)
(emphasis added); see Taylor, 495 U. S., at 602 (noting
that the modified approach may be employed only to de-
termine whether “a jury necessarily had to find” each
element of generic burglary). In other words, the modified
approach serves—and serves solely—as a tool to identify
the elements of the crime of conviction when a statute’s
disjunctive phrasing renders one (or more) of them
opaque. See Descamps, 570 U. S., at ___ (slip op., at 8).4
It is not to be repurposed as a technique for discovering
whether a defendant’s prior conviction, even though for a
too-broad crime, rested on facts (or otherwise said, in-
volved means) that also could have satisfied the elements
of a generic offense.
——————
4 Descamps made the point at some length, adding that the modified
categorical approach “retains the categorical approach’s central feature:
a focus on the elements, rather than the facts, of a crime. And it
preserves the categorical approach’s basic method: comparing those
elements with the generic offense’s. All the modified approach adds is a
mechanism for making that comparison when a statute lists multiple,
alternative elements, and so effectively creates ‘several different . . .
crimes.’ If at least one, but not all of those crimes matches the generic
version, a court needs a way to find out which the defendant was
convicted of. That is the job, as we have always understood it, of the
modified approach: to identify, from among several alternatives, the
crime of conviction so that the court can compare it to the generic
offense.” 570 U. S., at ___ (slip op., at 8) (citation omitted).
Cite as: 579 U. S. ____ (2016) 13
Opinion of the Court
B
The Government and JUSTICE BREYER claim that our
longtime and exclusive focus on elements does not resolve
this case because (so they say) when we talked about
“elements,” we did not really mean it. “[T]he Court used
‘elements,’ ” the Government informs us, “not to distin-
guish between ‘means’ and ‘elements,’ ” but instead to refer
to whatever the statute lists—whether means or elements.
Brief for United States 8; see id., at 19. In a similar vein,
JUSTICE BREYER posits that every time we said the word
“element,” we “used the word generally, simply to refer to
the matter at issue,” without “intend[ing] to set forth a
generally applicable rule.” Post, at 11–12 (dissenting
opinion).
But a good rule of thumb for reading our decisions is
that what they say and what they mean are one and the
same; and indeed, we have previously insisted on that
point with reference to ACCA’s elements-only approach.
In Descamps, the sole dissenting Justice made an argu-
ment identical to the one now advanced by the Govern-
ment and JUSTICE BREYER: that our prior caselaw had not
intended to distinguish between statutes listing alterna-
tive elements and those setting out “merely alternative
means” of commission. 570 U. S., at ___ (slip op., at 7)
(opinion of ALITO, J.).5 The Court rejected that contention,
——————
5 In another solo dissent, JUSTICE ALITO today switches gears, arguing
not that our precedent is consistent with his means-based view, but
instead that all of our ACCA decisions are misguided because all follow
from an initial wrong turn in Taylor v. United States, 495 U. S. 575(1990). See post, at 2–3. To borrow the driving metaphor of his own
dissent, JUSTICE ALITO thus locates himself entirely off the map of our
caselaw. But that is not surprising; he has harshly criticized the
categorical approach (and Apprendi too) for many years. See, e.g.,
Johnson v. United States, 576 U. S. ___, ___–___ (2015) (ALITO, J.,
dissenting) (slip op., at 8–13); Descamps, 570 U. S., at ___–___ (ALITO,
J., dissenting) (slip op., at 4–5); Moncrieffe v. Holder, 569 U. S. ___,
___–___ (2013) (ALITO, J., dissenting) (slip op., at 10–11); Chambers v.
14 MATHIS v. UNITED STATES
Opinion of the Court
stating 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 meth-
ods of committing one offense”—in other words, that they
listed alternative elements, not alternative means. Id., at
___, n. 2 (slip op., at 9, n. 2) (ellipsis and internal quota-
tion marks omitted); see, e.g., Johnson v. United States,
559 U. S. 133, 144 (2010); Nijhawan, 557 U. S., at 35.
That premise was important, we explained, because an
ACCA penalty may be based only on what a jury “neces-
sarily found” to convict a defendant (or what he necessar-
ily admitted). Descamps, 570 U. S., at ___, ___ (slip op., at
11, 17). And elements alone fit that bill; a means, or (as
we have called it) “non-elemental fact,” is “by definition[ ]
not necessary to support a conviction.” Id., at ___, n. 3, __
(slip op., at 11, n. 3, 15); see supra, at 2.6 Accordingly,
——————
United States, 555 U. S. 122, 132–134 (2009) (ALITO, J., concurring in
judgment); see also Hurst v. Florida, 577 U. S. ___, ___ (2016) (ALITO,
J., dissenting) (slip op., at 2); Alleyne v. United States, 570 U. S. ___,
___–___ (2013) (ALITO, J., dissenting) (slip op., at 1–2).
6 JUSTICE BREYER’s dissent rests on the idea that, contrary to that
long-accepted definition, a jury sometimes does “necessarily ha[ve] to
find” a means of commission, see post, at 6 (quoting Taylor, 495 U. S.,
at 602)—but Descamps specifically refuted that argument too. In that
case, JUSTICE ALITO made the selfsame claim: A jury, he averred,
should be treated as having “necessarily found” any fact, even though
non-elemental, that a later sentencing court can “infer[ ]” that the jury
agreed on “as a practical matter.” 570 U. S., at ___ (ALITO, J., dissent-
ing) (slip op., at 15). The Court rejected that view, explaining that its
ACCA decisions had always demanded that a jury necessarily agree as
a legal matter—which meant on elements and not on means. See id., at
___, n. 3 (slip op., at 10, n. 3). The requirement, from the Court’s
earliest decisions, was that a judge could impose a 15-year sentence
based only on a legal “certainty,” not on his inference (however reason-
able in a given case) about what a prior factfinder had thought. Shep-
ard, 544 U. S., at 23; see Taylor, 495 U. S., at 602; supra, at 10. Or
otherwise said, the relevant question was whether a defendant was
legally convicted of a certain offense (with a certain set of elements),
not whether a sentencing judge believes that the factfinder would have
Cite as: 579 U. S. ____ (2016) 15
Opinion of the Court
Descamps made clear that when the Court had earlier said
(and said and said) “elements,” it meant just that and
nothing else.
For that reason, this Court (including JUSTICE BREYER)
recently made clear that a court may not look behind the
elements of a generally drafted statute to identify the
means by which a defendant committed a crime. See
Descamps, 570 U. S., at ___ (slip op., at 2). Consider if
Iowa defined burglary as involving merely an unlawful
entry into a “premises”—without any further elaboration
of the types of premises that exist in the world (e.g., a
house, a building, a car, a boat). Then, all agree, ACCA’s
elements-focus would apply. No matter that the record of
a prior conviction clearly indicated that the defendant
burgled a house at 122 Maple Road—and that the jury
found as much; because Iowa’s (hypothetical) law included
an element broader than that of the generic offense, the
defendant could not receive an ACCA sentence. Were that
not so, this Court stated, “the categorical approach [would
be] at an end”; the court would merely be asking “whether
a particular set of facts leading to a conviction conforms to
a generic ACCA offense.” Id., at ___ (slip op., at 19). That
conclusion is common ground, and must serve as the
baseline for anything JUSTICE BREYER (or the Govern-
ment) here argues.
And contrary to his view, that baseline not only begins
but also ends the analysis, because nothing material
changes if Iowa’s law further notes (much as it does) that
a “premises” may include “a house, a building, a car, or a
boat.” That fortuity of legislative drafting affects neither
the oddities of applying the categorical approach nor the
——————
convicted him of that offense had it been on the books. See Carachuri-
Rosendo v. Holder, 560 U. S. 563, 576 (2010) (rejecting such a “hypo-
thetical” approach given a similar statute’s directive to “look to the
conviction itself”).
16 MATHIS v. UNITED STATES
Opinion of the Court
reasons for doing so. On the one hand, a categorical in-
quiry can produce the same counter-intuitive conse-
quences however a state law is written. Whether or not
the statute lists various means of satisfying the “premises”
element, the record of a prior conviction is just as likely to
make plain that the defendant burgled that house on
Maple Road and the jury knew it. On the other hand (and
as already shown), the grounds—constitutional, statutory,
and equitable—that we have offered for nonetheless using
the categorical approach lose none of their force in the
switch from a generally phrased statute (leaving means
implicit) to a more particular one (expressly enumerating
them). See supra, at 11. In every relevant sense, both
functional and legal, the two statutes—one saying just
“premises,” the other listing structures and vehicles—are
the same. And so the same rule must apply: ACCA disre-
gards the means by which the defendant committed his
crime, and looks only to that offense’s elements.
C
The first task for a sentencing court faced with an alter-
natively phrased statute is thus to determine whether its
listed items are elements or means. If they are elements,
the court should do what we have previously approved:
review the record materials to discover which of the enu-
merated alternatives played a part in the defendant’s
prior conviction, and then compare that element (along
with all others) to those of the generic crime. See ibid.
But if instead they are means, the court has no call to
decide which of the statutory alternatives was at issue in
the earlier prosecution. Given ACCA’s indifference to how
a defendant actually committed a prior offense, the court
may ask only whether the elements of the state crime and
generic offense make the requisite match.
This threshold inquiry—elements or means?—is easy in
this case, as it will be in many others. Here, a state court
decision definitively answers the question: The listed
Cite as: 579 U. S. ____ (2016) 17
Opinion of the Court
premises in Iowa’s burglary law, the State Supreme Court
held, are “alternative method[s]” of committing one of-
fense, so that a jury need not agree whether the burgled
location was a building, other structure, or vehicle. See
Duncan, 312 N. W. 2d, at 523; supra, at 6. When a ruling
of that kind exists, a sentencing judge need only follow
what it says. See Schad, 501 U. S., at 636 (plurality opin-
ion). Likewise, the statute on its face may resolve the
issue. If statutory alternatives carry different punish-
ments, then under Apprendi they must be elements. See,
e.g., Colo. Rev. Stat. §18–4–203 (2015); Vt. Stat. Ann., Tit.
13, §1201 (Cum. Supp. 2015); see also 530 U. S., at 490(requiring a jury to agree on any circumstance increasing
a statutory penalty); supra, at 10. Conversely, if a statu-
tory list is drafted to offer “illustrative examples,” then it
includes only a crime’s means of commission. United
States v. Howard, 742 F. 3d 1334, 1348 (CA11 2014); see
United States v. Cabrera-Umanzor, 728 F. 3d 347, 353
(CA4 2013). And a statute may itself identify which
things must be charged (and so are elements) and which
need not be (and so are means). See, e.g., Cal. Penal Code
Ann. §952 (West 2008). Armed with such authoritative
sources of state law, federal sentencing courts can readily
determine the nature of an alternatively phrased list.
And if state law fails to provide clear answers, federal
judges have another place to look: the record of a prior
conviction itself. As Judge Kozinski has explained, such a
“peek at the [record] documents” is for “the sole and lim-
ited purpose of determining whether [the listed items are]
element[s] of the offense.” Rendon v. Holder, 782 F. 3d
466, 473–474 (CA9 2015) (opinion dissenting from denial
of reh’g en banc).7 (Only if the answer is yes can the court
——————
7 Descamps previously recognized just this way of discerning whether
a statutory list contains means or elements. See 570 U. S., at ___, n. 2
(slip op., at 8–9, n. 2). The Court there noted that indictments, jury
18 MATHIS v. UNITED STATES
Opinion of the Court
make further use of the materials, as previously described,
see supra, at 12–13.) Suppose, for example, that one count
of an indictment and correlative jury instructions charge a
defendant with burgling a “building, structure, or vehi-
cle”—thus reiterating all the terms of Iowa’s law. That is
as clear an indication as any that each alternative is only
a possible means of commission, not an element that the
prosecutor must prove to a jury beyond a reasonable
doubt. So too if those documents use a single umbrella
term like “premises”: Once again, the record would then
reveal what the prosecutor has to (and does not have to)
demonstrate to prevail. See Descamps, 570 U. S., at ___
(slip op., at 17). Conversely, an indictment and jury in-
structions could indicate, by referencing one alternative
term to the exclusion of all others, that the statute con-
tains a list of elements, each one of which goes toward a
separate crime. Of course, such record materials will not
in every case speak plainly, and if they do not, a sentenc-
ing judge will not be able to satisfy “Taylor’s demand for
certainty” when determining whether a defendant was
convicted of a generic offense. Shepard, 544 U. S., at 21.
But between those documents and state law, that kind of
indeterminacy should prove more the exception than the
rule.
III
Our precedents make this a straightforward case. For
more than 25 years, we have repeatedly made clear that
application of ACCA involves, and involves only, compar-
ing elements. Courts must ask whether the crime of
——————
instructions, plea colloquies and plea agreements will often “reflect the
crime’s elements” and so can reveal—in some cases better than state
law itself—whether a statutory list is of elements or means. Ibid.Accordingly, when state law does not resolve the means-or-elements
question, courts should “resort[ ] to the [record] documents” for help in
making that determination. Ibid.Cite as: 579 U. S. ____ (2016) 19
Opinion of the Court
conviction is the same as, or narrower than, the relevant
generic offense. They may not ask whether the defend-
ant’s conduct—his particular means of committing the
crime—falls within the generic definition. And that rule
does not change when a statute happens to list possible
alternative means of commission: Whether or not made
explicit, they remain what they ever were—just the facts,
which ACCA (so we have held, over and over) does not
care about.
Some have raised concerns about this line of decisions,
and suggested to Congress that it reconsider how ACCA is
written. See, e.g., Chambers v. United States, 555 U. S.
122, 133 (2009) (ALITO, J., concurring in judgment);
Descamps, 570 U. S., at ___ (slip op., at 2) (KENNEDY, J.,
concurring). But whether for good or for ill, the elements-
based approach remains the law. And we will not intro-
duce inconsistency and arbitrariness into our ACCA deci-
sions by here declining to follow its requirements. Every-
thing this Court has ever said about ACCA runs counter to
the Government’s position. That alone is sufficient reason
to reject it: Coherence has a claim on the law.
Because the elements of Iowa’s burglary law are broader
than those of generic burglary, Mathis’s convictions under
that law cannot give rise to an ACCA sentence. We ac-
cordingly reverse the judgment of the Court of Appeals.
It is so ordered.
Cite as: 579 U. S. ____ (2016) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–6092
_________________
RICHARD MATHIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 23, 2016]
JUSTICE KENNEDY, concurring.
The Court’s opinion is required by its precedents, and so
I join it, with one reservation set forth below.
In no uncertain terms, the Court has held that the word
“burglary” in the Armed Career Criminal Act (ACCA)
“refers to the elements of the statute of conviction, not to
the facts of each defendant’s conduct.” Taylor v. United
States, 495 U. S. 575, 601 (1990). An enhancement is
proper, the Court has said, if a defendant is convicted of a
crime “having the elements” of generic burglary, “regard-
less of its exact definition or label” under state law. Id., at
599. See also Descamps v. United States, 570 U. S. ___,
___ (2013) (slip op., at 8) (“[T]he categorical approach’s
central feature [is] a focus on the elements, rather than
the facts, of a crime”). In the instant case, then, the Court
is correct to conclude that “an elements-based approach
remains the law.” Ante. at 15. And it is correct to note
further that it would “introduce inconsistency and arbi-
trariness into our ACCA decisions by here declining to
follow its requirements,” without reconsidering our prece-
dents as a whole. Ibid.My one reservation to the Court’s opinion concerns its
reliance on Apprendi v. New Jersey, 530 U. S. 466 (2000).
Ante at 10. In my view, Apprendi was incorrect and, in
any event, does not compel the elements based approach.
That approach is required only by the Court’s statutory
2 MATHIS v. UNITED STATES
KENNEDY, J., concurring
precedents, which Congress remains free to overturn.
As both dissenting opinions point out, today’s decision is
a stark illustration of the arbitrary and inequitable results
produced by applying an elements based approach to this
sentencing scheme. It could not have been Congress’
intent for a career offender to escape his statutorily man-
dated punishment “when the record makes it clear beyond
any possible doubt that [he] committed generic burglary.”
Post, at 6 (opinion of ALITO, J.). Congress also could
not have intended vast sentencing disparities for defend-
ants convicted of identical criminal conduct in different
jurisdictions.
Congress is capable of amending the ACCA to resolve
these concerns. See, e.g., Nijhawan v. Holder, 557 U. S.
29, 38 (2009) (interpreting the language Congress used in
8 U. S. C. §1101(a)(43)(M)(i) as requiring a “circumstance-
specific” rather than categorical approach). But continued
congressional inaction in the face of a system that each
year proves more unworkable should require this Court to
revisit its precedents in an appropriate case.
Cite as: 579 U. S. ____ (2016) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–6092
_________________
RICHARD MATHIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 23, 2016]
JUSTICE THOMAS, concurring.
I join the Court’s opinion, which faithfully applies our
precedents. The Court holds that the modified categorical
approach cannot be used to determine the specific means
by which a defendant committed a crime. Ante, at 11–12.
By rightly refusing to apply the modified categorical ap-
proach, the Court avoids further extending its precedents
that limit a criminal defendant’s right to a public trial
before a jury of his peers.
In Almendarez-Torres v. United States, 523 U. S. 224,
246–247 (1998), the Court held that the existence of a
prior conviction triggering enhanced penalties for a recidi-
vist was a fact that could be found by a judge, not an
element of the crime that must be found by a jury. Two
years later, the Court held that “any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum” is an element of a crime and therefore “must
be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi v. New Jersey, 530 U. S. 466, 490 (2000);
see id., at 489–490. But Apprendi recognized an exception
for the “fact of a prior conviction,” instead of overruling
Almendarez-Torres. See 530 U. S., at 490. I continue to
believe that the exception in Apprendi was wrong, and I
have urged that Almendarez-Torres be reconsidered. See
Descamps v. United States, 570 U. S. ___, ___ (2013)
(THOMAS, J., concurring in judgment) (slip op., at 2).
2 MATHIS v. UNITED STATES
THOMAS, J., concurring
Consistent with this view, I continue to believe that
depending on judge-found facts in Armed Career Criminal
Act (ACCA) cases violates the Sixth Amendment and is
irreconcilable with Apprendi. ACCA improperly “allows
the judge to ‘mak[e] a finding that raises [a defendant’s]
sentence beyond the sentence that could have lawfully
been imposed by reference to facts found by the jury or
admitted by the defendant.’ ” Descamps, supra, at ___–___
(opinion of THOMAS, J.) (slip op., at 1–2) (brackets in origi-
nal; internal quotation marks omitted). This Sixth
Amendment problem persists regardless of whether “a
court is determining whether a prior conviction was en-
tered, or attempting to discern what facts were necessary
to a prior conviction.” Id., at ___ (slip op., at 2) (citation
omitted).
Today, the Court “at least limits the situations in which
courts make factual determinations about prior convic-
tions.” Ibid. As the Court explains, the means of commit-
ting an offense are nothing more than “various factual
ways of committing some component of the offense.” Ante,
at 4. Permitting judges to determine the means of com-
mitting a prior offense would expand Almendarez-Torres.
Therefore, I join the Court’s opinion refusing to allow
judges to determine, without a jury, which alternative
means supported a defendant’s prior convictions.
Cite as: 579 U. S. ____ (2016) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–6092
_________________
RICHARD MATHIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 23, 2016]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
The elements/means distinction that the Court draws
should not matter for sentencing purposes. I fear that the
majority’s contrary view will unnecessarily complicate
federal sentencing law, often preventing courts from
properly applying the sentencing statute that Congress
enacted. I consequently dissent.
I
The federal statute before us imposes a mandatory
minimum sentence upon a person convicted of being a
felon in possession of a firearm if that person also has
three previous convictions for (among several other things)
“burglary.” 18 U. S. C. §924(e)(2)(B)(ii). The petitioner
here has been convicted of being a felon in possession, and
he previously was convicted of three other crimes that
qualify him for the federal mandatory minimum if, but
only if, those previous convictions count as “burglary.” To
decide whether he has committed what the federal statute
calls a “burglary,” we must look to the state statute that
he violated.
The relevant state statute, an Iowa statute, says that a
person commits a crime if he (1) “enters an occupied struc-
ture,” (2) “having no right . . . to do so,” (3) with “the intent
to commit a felony.” Iowa Code §713.1 (2013). It then
2 MATHIS v. UNITED STATES
BREYER, J., dissenting
goes on to define “occupied structure” as including any (1)
“building,” (2) “structure,” (3) “land” vehicle, (4) “water”
vehicle, or (5) “air vehicle, or similar place.” §702.12. The
problem arises because, as we have previously held, see
Taylor v. United States, 495 U. S. 575, 602 (1990), if the
structure that an offender unlawfully entered (with intent
to commit a felony) was a “building,” the state crime that
he committed counts under the federal statute as “bur-
glary.” But if the structure that the offender unlawfully
entered was a land, water, or air vehicle, the state crime
does not count as a “burglary.” Thus, a conviction for
violating the state statute may, or may not, count as a
“burglary,” depending upon whether the structure that he
entered was, say, a “building” or a “water vehicle.”
Here, if we look at the court documents charging Mathis
with a violation of the state statute, they tell us that he
was charged with entering, for example, a “house and
garage.” App. 60–73 (charging documents). They say
nothing about any other structure, say, a “water vehicle.”
Thus, to convict him, the jury—which had to find that he
unlawfully entered an “occupied structure”—must have
found that he entered a “house and garage,” which conced-
edly count as “building[s].” So why is that not the end of
this matter? Why does the federal statute not apply?
Just to be sure, let us look at how we previously treated
an almost identical instance. In Taylor, a state statute
made criminal the “breaking and entering [of] a building,
booth, tent, boat, or railroad car.” 495 U. S., at 579, n. 1.
We explained that breaking into a building would amount
to “burglary” under the federal statute, but breaking into
a railroad car would not. But the conviction document
itself said only that the offender had violated the statute;
it did not say whether he broke into a building or a rail-
road car. See id., at 598–602. We said that in such a case
the federal sentencing judge could look at the charging
papers and the jury instructions in the state case to try to
Cite as: 579 U. S. ____ (2016) 3
BREYER, J., dissenting
determine what the state conviction was actually for:
building, tent, or railroad car. We wrote that
“in a State whose burglary statutes include entry of
an automobile as well as a building, if the indictment
or information and jury instructions show that the de-
fendant was charged only with a burglary of a build-
ing, and that the jury necessarily had to find an entry
of a building to convict, then the Government should
be allowed to use the conviction for enhancement.”
Id., at 602.
(We later added that where a conviction rests upon an
offender’s guilty plea, the federal judge can look to the
facts that the offender admitted at his plea colloquy for the
same purpose. See Shepard v. United States, 544 U. S. 13,
20–21 (2005).)
So, again, what is the problem? The State’s “burglary
statut[e] include[s] entry” of a vehicle as well as a “build-
ing.” Taylor, 495 U. S., at 602. The conviction document
might not specify what kind of a structure the defendant
entered (i.e., whether a building or an automobile). But
the federal sentencing judge can look at the charging
documents (or plea colloquy) to see whether “the defend-
ant was charged only with a burglary of a building.” Ibid.And here that was so. In addition, since the charging
documents show that the defendant was charged only with
illegal entry of a “building”—not a tent or a railroad car—
the jury, in order to find (as it did) that the defendant
broke into an occupied structure, would “necessarily
[have] had to find an entry of a building.” Ibid. Hence,
“the Government should be allowed to use the conviction
for enhancement.” Ibid.The majority, however, does not agree that the two
cases I have described are almost identical. To the con-
trary, it notes correctly that our precedent often uses the
word “element” to describe the relevant facts to which a
4 MATHIS v. UNITED STATES
BREYER, J., dissenting
statute refers when it uses words such as “building,”
“tent,” “boat,” or “railroad car.” See, e.g., ante, at 8–9. It
points out that, here, the Iowa Supreme Court described
those words as referring, not to “elements” of a crime, but
rather to “means” through which a crime was committed.
See ante, at 5–6. And that fact, in the majority’s view,
makes all the difference. See ante, at 13–16. But why? I,
of course, see that there is a distinction between means
and elements in the abstract, but—for sentencing pur-
poses—I believe that it is a distinction without a difference.
II
I begin with a point about terminology. All the relevant
words in this case, such as “building,” “structure,” “water
vehicle,” and the like, are statutory words. Moreover, the
statute uses those words to help describe a crime. Fur-
ther, the statute always uses those words to designate
facts. Whether the offender broke into a building is a fact;
whether he broke into a water vehicle is a fact. Some-
times, however, a State may treat certain of those facts as
elements of a crime. And sometimes a State may treat
certain of those facts as means of committing a crime. So
far, everyone should agree. See Richardson v. United
States, 526 U. S. 813, 817 (1999) (describing both “ele-
ments” and “means” as “facts”). Where we disagree is
whether that difference, relevant to the application of
state law, should make a difference for federal sentencing
purposes.
III
Whether a State considers the statutory words “boat” or
“building” to describe elements of a crime or a means of
committing a crime can make a difference for purposes of
applying the State’s criminal law, but it should not make a
difference in respect to the sentencing question at issue
here. The majority, I believe, reasons something like this:
Cite as: 579 U. S. ____ (2016) 5
BREYER, J., dissenting
Suppose the jury unanimously agreed that the defendant
unlawfully entered some kind of structure with felonious
intent, but the jury is deadlocked six to six as to whether
that structure is (1) a “boat” or (2) a “house.” If the statute
uses those two words to describe two different elements of
two different crimes—i.e., (1) breaking into a boat, and (2)
breaking into a house—then the defendant wins, for the
jury has not found unanimously each element of either
crime. But if the statute uses those two words to describe
two different means of committing the same crime—i.e.,
breaking into an occupied structure that consists of either
a house or a boat—then the defendant loses, for (as long as
the jury decides unanimously that the defendant broke
into an occupied structure of whichever kind) the jury
need not decide unanimously which particular means the
defendant used to commit the crime. See ante, at 2–5.
I accept that reasoning. But I do not see what it has to
do with sentencing. In the majority’s view, the label
“means” opens up the possibility of a six-to-six jury split,
and it believes that fact would prevent us from knowing
whether the conviction was for breaking into a “building”
or a “boat.” See ante, at 4–5. But precisely the same is
true were we to use the label “element” to describe the
facts set forth in the state statute. The federal sentencing
judge may see on the defendant’s record a conviction for
violating a particular provision of the state criminal code;
that code may list in a single sentence both “buildings”
and “boats”; the State may interpret the two words as
separate elements of two separate crimes; and the federal
judge will not know from the simple fact of conviction for
violating the statute (without more) which of the two
crimes was at issue (that is, was it the one aimed at bur-
glaries of buildings, or the one aimed at burglaries of
boats?). That is why the Court said in Taylor that in such
a case the federal judge may look to the “indictment or
information and jury instructions” to determine whether
6 MATHIS v. UNITED STATES
BREYER, J., dissenting
“the jury necessarily had to find an entry of a building,”
rather than a boat, “to convict.” 495 U. S., at 602. If so,
the federal judge may count the conviction as falling
within the federal statutory word “burglary” and use it for
sentencing.
In my view, precisely the same is true if the state courts
label the statute-mentioned facts (“building,” “boat,” etc.)
as “means” rather than “elements.” The federal judge
should be able to “look . . . to” the charging documents and
the plea agreement to see if “the jury necessarily had to
find an entry of a building,” rather than a boat, “to con-
vict.” Ibid. If so, the federal judge should be able to count
the conviction as a federal-statute “burglary” conviction
and use it for sentencing.
Of course, sometimes the charging documents will not
give us the answer to the question. But often they will. If,
for example, the charging document accuses Smith of
breaking and entering into a house (and does not mention
any other structure), then (1) the jury had to find unani-
mously that he broke into a “house,” if “house” is an ele-
ment, and (2) the jury had to find unanimously that he
broke into a “house,” if “house” is the only means charged.
(Otherwise the jury would not have unanimously found
that he broke into an “occupied structure,” which is an
element of the statutory crime.)
Suppose, for example, that breaking into a “building” is
an element of Iowa’s burglary crime; and suppose the
State charges that Smith broke into a building located in
Des Moines (and presents evidence at trial concerning
only a Des Moines offense), but the jury returns its verdict
on a special-verdict form showing that six jurors voted for
guilt on the theory that he broke into a building located in
Detroit—not Des Moines. The conviction would fail (at
least in Iowa), would it not? See, e.g., State v. Bratthauer,
354 N. W. 2d 774, 776 (Iowa 1984) (“If substantial evidence
is presented to support each alternative method of commit-
Cite as: 579 U. S. ____ (2016) 7
BREYER, J., dissenting
ting a single crime, and the alternatives are not repugnant
to each other, then unanimity of the jury as to the mode of
commission of the crime is not required. At the root of this
standard is the principle that the unanimity rule requires
jurors to be in substantial agreement as to just what a
defendant did as a step preliminary to determining
whether the defendant is guilty of the crime charged”
(emphasis added; citation, brackets, and internal quota-
tion marks omitted)). Similarly, we would know that—if
the charging documents claim only that the defendant
broke into a house, and the Government presented proof
only of that kind of burglary—the jury had to find unani-
mously that he broke into a house, not a boat. And that is
so whether state law considers the statutory word “house”
to be an element or a means. I have not found any non-
fanciful example to the contrary.
IV
Consider the federal statute before us—the statute that
contains the word “burglary”—from a more general sen-
tencing perspective. By way of background, it is im-
portant to understand that, as a general matter, any
sentencing system must embody a host of compromises
between theory and practicality. From the point of view of
pure theory, there is much to be said for “real offense”
sentencing. Such a system would require a commission or
a sentencing judge to determine in some detail “the actual
conduct in which the defendant engaged,” i.e., what the
defendant really did now and in the past. United States
Sentencing Commission (USSC), Guidelines Manual ch. 1,
pt. A, p. 5 (Nov. 2015). Such a system would produce
greater certainty that two offenders who engaged in (and
had previously engaged in) the same real conduct would
be punished similarly. See ibid.Pure “real offense” sentencing, however, is too complex
to work. It requires a sentencing judge (or a sentencing
8 MATHIS v. UNITED STATES
BREYER, J., dissenting
commission) to know all kinds of facts that are difficult to
discover as to present conduct and which a present sen-
tencing judge could not possibly know when he or she
seeks to determine what conduct underlies a prior convic-
tion. Because of these practical difficulties, the USSC
created Guidelines that in part reflect a “charge offense”
system, a system based “upon the conduct that constitutes
the elements of the offense for which the defendant was
charged and of which he was convicted.” Ibid.A pure “charge offense” system, however, also has seri-
ous problems. It can place great authority to determine a
sentence in the hands of the prosecutor, not the judge,
creating the very nonuniformity that a commission would
hope to minimize. Hence, the actual federal sentencing
system retains “a significant number of real offense ele-
ments,” allowing adjustments based upon the facts of a
defendant’s case. Id., at 6. And the Commission is cur-
rently looking for new ways to create a better compromise.
See, e.g., USSC, Amendments to the Sentencing Guide-
lines, at 24 (Apr. 2016) (effective Nov. 1, 2016) (creating a
“sentence-imposed model for determining” whether prior
convictions count for sentence-enhancement purposes in
the context of certain immigration crimes).
With this background in mind, turn to the federal stat-
ute before us. The statute, reflecting the impossibility of
knowing in detail the conduct that underlies a prior con-
viction, uses (in certain cases involving possession of
weapons) the fact of certain convictions (including convic-
tions for burglary) as (conclusive) indications that the
present defendant has previously engaged in highly unde-
sirable conduct. And, for the general reasons earlier
described, it is practical considerations, not a general
theory, that would prevent Congress from listing the
specific prior conduct that would warrant a higher present
sentence. Practical considerations, particularly of admin-
istration, can explain why Congress did not tell the courts
Cite as: 579 U. S. ____ (2016) 9
BREYER, J., dissenting
precisely how to apply its statutory word “burglary.” And
similar practical considerations can help explain why this
Court, in Taylor and later cases, described a modified
categorical approach for separating the sheep from the
goats. Those cases recognize that sentencing judges have
limited time, they have limited information about prior
convictions, and—within practical constraints—they must
try to determine whether a prior conviction reflects the
kind of behavior that Congress intended its proxy (i.e.,
“burglary”) to cover.
The majority’s approach, I fear, is not practical. Per-
haps the statutes of a few States say whether words like
“boat” or “building” stand for an element of a crime or a
means to commit a crime. I do not know. I do know,
however, that many States have burglary statutes that
look very much like the Iowa statute before us today. See,
e.g., Colo. Rev. Stat. §§18–4–101, 18–4–202, 18–4–203
(2015); Mont. Code Ann. §§45–2–101, 45–6–201, 45–6–204
(2015); N. H. Rev. Stat. Ann. §635.1 (2015); N. D. Cent.
Code Ann. §§12.1–22–02, 12.1–22–06 (2012); Ohio Rev.
Code Ann. §§2909.01, 2911.11–2911.13 (Lexis 2014); 18
Pa. Cons. Stat. Ann. §§3501, 3502 (2015); S. D. Codified
Laws §§22–1–2, 22–32–1, 22–32–3, 22–32–8 (2006); Wyo.
Stat. Ann. §§6–1–104, 6–3–301 (2015); see also ALI, Model
Penal Code §§221.0, 221.1 (1980); cf. Taylor, 495 U. S., at
598 (“burglary” in the federal statute should reflect the
version of burglary “used in the criminal codes of most
States”). I also know that there are very few States where
one can find authoritative judicial opinions that decide the
means/element question. In fact, the Government told us
at oral argument that it had found only “two States” that,
in the context of burglary, had answered the
means/elements question. Tr. of Oral Arg. 45; see id.,
at 37.
The lack of information is not surprising. After all, a
prosecutor often will charge just one (e.g., a “building”) of
10 MATHIS v. UNITED STATES
BREYER, J., dissenting
several statutory alternatives. See Descamps v. United
States, 570 U. S. ___, ___ (2013) (slip op., at 6). A jury that
convicts, then, would normally have to agree unanimously
about the existence of that particular fact. See Richard-
son, 526 U. S., at 818 (“Our decision [whether something is
an element or a means] will make a difference where . . .
the Government introduces evidence that the defendant
has committed more underlying drug crimes than legally
necessary to make up a ‘series’ ”). Hence, it will not matter
for that particular case whether the State, as a general
matter, would categorize that fact (to which the statute
refers) as an “element” or as a “means.”
So on the majority’s approach, what is a federal sentenc-
ing judge to do when facing a state statute that refers to a
“building,” a “boat,” a “car,” etc.? The charging documents
will not answer the question, for—like the documents at
issue here—they will simply charge entry into, say, a
“building,” without more. But see ante, at 17–18 (suggest-
ing that a defendant’s charging documents will often
answer the question). The parties will have to look to
other state cases to decide whether that fact is a “means”
or an “element.” That research will take time and is likely
not to come up with an answer. What was once a simple
matter will produce a time-consuming legal tangle. See,
e.g., State v. Peterson, 168 Wash. 2d 763, 769, 230 P. 3d
588, 591 (2010) (“ ‘There is simply no bright-line rule by
which the courts can determine whether the legislature
intended to provide alternate means of committing a
particular crime. Instead, each case must be evaluated on
its own merits’ ” (brackets omitted)); State v. Brown, 295
Kan. 181, 192, 284 P. 3d 977, 987 (2012) (the “alternative
means” definition is “mind-bending in its application”).
That is why lower court judges have criticized the ap-
proach the majority now adopts. See, e.g., Omargharib v.
Holder, 775 F. 3d 192, 200 (CA4 2014) (Niemeyer, J.,
concurring) (“Because of the ever-morphing analysis and
Cite as: 579 U. S. ____ (2016) 11
BREYER, J., dissenting
the increasingly blurred articulation of applicable stand-
ards, 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 . . . . I find it espe-
cially difficult to comprehend the distinction” (emphasis
deleted)).
V
The majority bases its conclusion primarily upon prece-
dent. In my view, precedent does not demand the conclu-
sion that the majority reaches. I agree with the majority
that our cases on the subject have all used the word “ele-
ment” in contexts similar to the present context. But that
fact is hardly surprising, for all the cases in which that
word appears involved elements—or at least the Court
assumed that was so. See Descamps, 570 U. S., at ___,
n. 2 (slip op., at 8, n. 2). In each of those cases, the Court
used the word generally, simply to refer to the matter at
issue, without stating or suggesting any view about the
subject of the present case. See, e.g., id., at ___ (slip op., at
5) (“Sentencing courts may look only to the statutory
definitions—i.e., the elements—of a defendant’s prior
offenses” (internal quotation marks omitted)); Shepard,
544 U. S., at 16–17 (using the terms “statutory definition”
and “statutory elements” interchangeably); Taylor, 495
U. S., at 602 (“[A]n offense constitutes ‘burglary’ for pur-
poses of [the Armed Career Criminal Act] if either its
statutory definition substantially corresponds to ‘generic’
burglary, or the charging paper and jury instructions
actually required the jury to find all the elements of ge-
neric burglary”).
The genius of the common law consists in part in its
ability to modify a prior holding in light of new circum-
stances, particularly where, as Justice Holmes said, an
existing principle runs up against a different principle
12 MATHIS v. UNITED STATES
BREYER, J., dissenting
that requires such modification. See Holmes, The Path of
the Law, 10 Harv. L. Rev. 457, 469 (1897). A fortiori, we
should not apply this Court’s use of a word in a prior
case—a word that was not necessary to the decision of the
prior case, and not intended to set forth a generally appli-
cable rule—to a new circumstance that differs signifi-
cantly in respect to both circumstances and the legal
question at issue.
Does Apprendi v. New Jersey, 530 U. S 466 (2000),
require the majority’s result here? There we held that any
fact (“[o]ther than the fact of a prior conviction”) that must
be proved in order to increase the defendant’s sentence
above what would otherwise be the statutory maximum
must be proved to a jury beyond a reasonable doubt. Id.,
at 490. Where, as here, the State charges only one kind of
“occupied structure”—namely, entry into a “garage”—that
criterion is met. The State must prove to the jury beyond
a reasonable doubt that the defendant unlawfully entered
a garage. And that is so, whether the statute uses the
term “garage” to refer to a fact that is a means or a fact
that is an element. If the charging papers simply said
“occupied structure,” leaving the jury free to disagree
about whether that structure was a “garage” or was, in-
stead, a “boat,” then we lack the necessary assurance
about jury unanimity; and the sentencing judge conse-
quently cannot use that conviction as a basis for an in-
creased federal sentence. And that is true whether the
state statute, when using the words “garage” and “boat,”
intends them to refer to a fact that is a means or a fact
that is an element.
What about Descamps? The statute there at issue made
it a crime to “ente[r] certain locations with intent to com-
mit grand or petit larceny or any felony.” 570 U. S., at ___
(slip op., at 3) (internal quotation marks omitted). The
statute made no distinction between (1) lawful entry (e.g.,
entering a department store before closing time) and (2)
Cite as: 579 U. S. ____ (2016) 13
BREYER, J., dissenting
unlawful entry (e.g., breaking into a store after it has
closed). See ibid. The difference matters because unlaw-
ful entry is a critical constituent of the federal statute’s
version of “burglary.” If the entry is lawful, the crime does
not fall within the scope of that word.
We held that a conviction under this statute did not
count as a “burglary” for federal purposes. We reasoned
that the statute required the Government only to prove
“entry,” that there was no reason to believe that charging
documents would say whether the entry was lawful or
unlawful, and that, “most important[ly],” even if they did,
the jury did not have to decide that the entry was unlaw-
ful in order to convict (that is, any description in the
charging document that would imply or state that the
entry was illegal, say, at 2:00 in the morning, would be
coincidental). Id., at ___ (slip op., at 18); see id., at ___
(slip op., at 14).
Here, by way of contrast, the charging documents must
allege entry into an “occupied structure,” and that “struc-
ture” can consist of one of several statutory alternatives.
Iowa Code §§713.1, 702.12. The present law thus bears
little resemblance to the hypothetical statute the majority
describes. That hypothetical statute makes it a crime to
break into a “premises” without saying more. Ante, at 15–
16. Thus, to apply the federal sentencing statute to such a
nonspecific, hypothetical statute would require sentencing
judges to “imaginatively transfor[m]” “every element of
[the] statute . . . so that [the] crime is seen as containing
an infinite number of sub-crimes corresponding to ‘all the
possible ways an individual can commit’ ” the crime—an
impossibly difficult task. Descamps, 570 U. S., at ___–___
(slip op., at 18–19).
But the Iowa statute before us contains explicit (not
hypothetical) statutory alternatives, and therefore it is
likely (not unlikely) that the charging documents will list
one or more of these alternatives. Indeed, that is the case
14 MATHIS v. UNITED STATES
BREYER, J., dissenting
with each of Mathis’ charging documents. See App. 60–73.
And if the charging documents list only one of these alter-
natives, say, a “building,” the jury normally would have to
find unanimously that the defendant entered into a build-
ing in order to convict. See Bratthauer, 354 N. W. 2d, at
776. To repeat my central point: In my view, it is well
within our precedent to count a state burglary conviction
as a “burglary” within the meaning of the federal law
where (1) the statute at issue lists the alternative means
by which a defendant can commit the crime (e.g., burgling
a “building” or a “boat”) and (2) the charging documents
make clear that the state alleged (and the jury or trial
judge necessarily found) only an alternative that matches
the federal version of the crime.
Descamps was not that kind of case. It concerned a
statute that did not explicitly list alternative means for
commission of the crime. And it concerned a fact extrane-
ous to the crime—the fact (whether entry into the burgled
structure was lawful or unlawful) was neither a statutory
means nor an element. As the Court in that case de-
scribed it, the fact at issue was, under the state statute, a
“legally extraneous circumstanc[e]” of the State’s case.
570 U. S., at ___ (slip op., at 14). But this case concerns a
fact necessary to the crime (regardless of whether the
Iowa Supreme Court generally considers that fact to be a
means or an element).
Precedent, by the way, also includes Taylor. And, as I
have pointed out, Taylor says that the modified categorical
approach it sets forth may “permit the sentencing court to
go beyond the mere fact of conviction in a narrow range of
cases where a jury was actually required to find all the
elements of generic burglary.” 495 U. S., at 602. Taylor is
the precedent that I believe governs here. Because the
majority takes a different view, with respect, I dissent.
Cite as: 579 U. S. ____ (2016) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–6092
_________________
RICHARD MATHIS, PETITIONER v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE EIGHTH CIRCUIT
[June 23, 2016]
JUSTICE ALITO, dissenting.
Sabine Moreau lives in Solre-sur-Sambre, a town in
Belgium located 38 miles south of Brussels. One day she
set out in her car to pick up a friend at the Brussels train
station, a trip that should have taken under an hour. She
programmed her GPS and headed off. Although the GPS
sent her south, not north, she apparently thought nothing
of it. She dutifully stayed on the prescribed course. Nor
was she deterred when she saw road signs in German for
Cologne, Aachen, and Frankfurt. “I asked myself no ques-
tions,” she later recounted. “I kept my foot down.”1
Hours passed. After crossing through Germany, she
entered Austria. Twice she stopped to refuel her car. She
was involved in a minor traffic accident. When she tired,
——————
1 For accounts of the journey, see, e.g., Waterfield, GPS Failure
Leaves Belgian Woman in Zagreb Two Days Later, The Telegraph (Jan.
13, 2013), online at http://www.telegraph.co.uk/news/worldnews/europe/
belgium/9798779/GPS-failure-leaves-Belgian-woman-in-Zagreb-two-days-
later.html (all Internet materials as last visited June 22, 2016); Greno-
ble, Sabine Moreau, Belgian Woman, Drives 900 Miles Off 90-Mile
Route Because of GPS Error, Huffington Post (Jan. 15, 2013), online at
http:// www.huffingtonpost.com/2013/01/15/sabine-moreau-gps-belgium-
croatia-900-miles_n_2475220.html; Malm, Belgian Woman Blindly
Drove 900 Miles Across Europe As She Followed Broken GPS Instead
Of 38-Miles To The Station, Daily Mail, (Jan. 14, 2013), online at http://
www. dailymail.co.uk/news/article-2262149 / Belgian-woman-67-picking-
friend-railway-station-ends-Zagreb-900-miles-away-satnav-disaster.html.
2 MATHIS v. UNITED STATES
ALITO, J., dissenting
she pulled over and slept in her car. She crossed the Alps,
drove through Slovenia, entered Croatia, and finally ar-
rived in Zagreb—two days and 900 miles after leaving her
home. Either she had not properly set her GPS or the
device had malfunctioned. But Ms. Moreau apparently
refused to entertain that thought until she arrived in the
Croatian capital. Only then, she told reporters, did she
realize that she had gone off course, and she called home,
where the police were investigating her disappearance.
Twenty-six years ago, in Taylor v. United States, 495
U. S. 575, 602 (1990), this Court set out on a journey like
Ms. Moreau’s. Our task in Taylor, like Ms. Moreau’s short
trip to the train station, might not seem very difficult—
determining when a conviction for burglary counts as a
prior conviction for burglary under the Armed Career
Criminal Act (ACCA), 18 U. S. C. §924(e). But things have
not worked out that way.
Congress enacted ACCA to ensure that violent repeat
criminal offenders could be subject to enhanced penal-
ties—that is, longer prison sentences—in a fair and uni-
form way across States with myriad criminal laws. See
Descamps v. United States, 570 U. S. ___, ___–___ (2013)
(ALITO, J., dissenting) (slip op., at 13–14). ACCA calls for
an enhanced sentence when a defendant, who has three or
more prior convictions for a “violent felony,” is found guilty
of possession of a firearm. §924(e)(1). And ACCA provides
that the term “violent felony” means, among other things,
“any crime punishable by imprisonment for a term exceed-
ing one year . . . that . . . is burglary.” §924(e)(2)(B). In
other words, “burglary” = “violent felony.”
While this language might seem straightforward, Taylor
introduced two complications. First, Taylor held that
“burglary” under ACCA means offenses that have the
elements of what the Court called “generic” burglary,
defined as unlawfully entering or remaining in a building
or structure with the intent to commit a crime. 495 U. S.,
Cite as: 579 U. S. ____ (2016) 3
ALITO, J., dissenting
at 598. This definition is broader than that of the common
law but does not include every offense that States have
labeled burglary, such as the burglary of a boat or vehicle.
Second, Taylor and subsequent cases have limited the
ability of sentencing judges to examine the record in prior
cases for the purpose of determining whether the convic-
tions in those cases were for “generic burglary.” See, e.g.,
Shepard v. United States, 544 U. S. 13, 26 (2005). We
have called this the “modified categorical approach.”
Descamps, supra, at ___–___ (slip op., at 1–2).
Programmed in this way, the Court set out on a course
that has increasingly led to results that Congress could
not have intended.2 And finally, the Court arrives at
today’s decision, the upshot of which is that all burglary
convictions in a great many States may be disqualified
from counting as predicate offenses under ACCA. This
conclusion should set off a warning bell. Congress indis-
putably wanted burglary to count under ACCA; our course
has led us to the conclusion that, in many States, no bur-
glary conviction will count; maybe we made a wrong turn
at some point (or perhaps the Court is guided by a mal-
functioning navigator). But the Court is unperturbed by
its anomalous result. Serenely chanting its mantra, “Ele-
ments,” see ante, at 8, the Court keeps its foot down and
drives on.
The Court’s approach calls for sentencing judges to
delve into pointless abstract questions. In Descamps, the
——————
2 In Descamps v. United States, 570 U. S. ___ (2013), the decision
meant that no California burglary conviction counts under ACCA. See
id., at ___ (ALITO, J., dissenting) (slip op., at 14). In Moncrieffe v.
Holder, 569 U. S. ___ (2013), where the Court took a similar approach
in interpreting a provision of the immigration laws, the Court came to
the conclusion that convictions in about half the states for even very
large scale marijuana trafficking do not count as “illicit trafficking in a
controlled substance” under a provision of the immigration laws. Id., at
___ (ALITO, J., dissenting) (slip op., at 9).
4 MATHIS v. UNITED STATES
ALITO, J., dissenting
Court gave sentencing judges the assignment of determin-
ing whether a state statute is “divisible.” See 570 U. S., at
___ (slip op., at 23). When I warned that this novel in-
quiry would prove to be difficult, the opinion of the Court
brushed off that concern, see id., at ___ (slip op., at 8–9,
n. 2) (“[W]e can see no real-world reason to worry”). But
lower court judges, who must regularly grapple with the
modified categorical approach, struggled to understand
Descamps. Compare Rendon v. Holder, 764 F. 3d 1077,
1084–1090 (CA9 2014) (panel opinion), with 782 F. 3d 466,
466–473 (CA9 2015) (eight judges dissenting from denial
of reh’g en banc), and id., at 473–474 (Kozinski, J., dis-
senting from denial of reh’g en banc). Now the Court tells
them they must decide whether entering or remaining in a
building is an “element” of committing a crime or merely a
“means” of doing so. I wish them good luck.
The distinction between an “element” and a “means” is
important in a very different context: The requisite num-
ber of jurors (all 12 in most jurisdictions) must agree that
a defendant committed each element of an offense, but the
jurors need not agree on the means by which an element
was committed. So if entering or remaining in a building
is an element, the jurors must agree that the defendant
entered or remained in a building and not, say, a boat.
But if the element is entering or remaining within one of a
list of places specified in the statute (say, building, boat,
vehicle, tent), then entering or remaining in a building is
simply a means. Jurors do not need to agree on the means
by which an offense is committed, and therefore whether a
defendant illegally entered a building or a boat would not
matter for purposes of obtaining a conviction.
In the real world, there are not many cases in which the
state courts are required to decide whether jurors in a
burglary case must agree on the building vs. boat issue, so
the question whether buildings and boats are elements or
means does not often arise. As a result, state-court cases
Cite as: 579 U. S. ____ (2016) 5
ALITO, J., dissenting
on the question are rare. The Government has surveyed
all the state burglary statutes and has found only one—
Iowa, the State in which petitioner was convicted for
burglary—in which the status of the places covered as
elements or means is revealed. See Brief for United
States 43, and n. 13. Petitioner’s attorneys have not cited
a similar decision from any other State.
How, then, are federal judges sentencing under ACCA to
make the element/means determination? The Court
writes: “This threshold inquiry—elements or means?—is
easy in this case, as it will be in many others.” Ante, at 17.
Really?3 The determination is easy in this case only be-
cause the fortified legal team that took over petitioner’s
representation after this Court granted review found an
Iowa case on point, but this discovery does not seem to
have been made until the preparation of the brief filed in
this Court. Brief for United States 43, and n. 13. “Peti-
tioner’s belated identification of a relevant state decision
confirms that the task is not an easy one.” Ibid. And that
is not the worst of it. Although many States have bur-
glary statutes like Iowa’s that apply to the burglary of
places other than a building, neither the Government nor
petitioner has found a single case in any of these jurisdic-
tions resolving the question whether the place burglarized
is an element or a means.
The Court assures the federal district judges who must
apply ACCA that they do not need such state-court deci-
sions, that it will be easy for federal judges to predict how
state courts would resolve this question if it was ever
presented to them. Ante, at 16–18. But the Court has not
shown how this can be done. The Government’s brief cites
——————
3 In Rendon v. Holder, 782 F. 3d 466, 466–473 (CA9 2014) (dissent
from denial of rehearing), eight circuit judges addressed the question of
the difficulty of this determination. They described it as “a notoriously
uncertain inquiry” that will lead to “uncertain results.” Id., at 471.
6 MATHIS v. UNITED STATES
ALITO, J., dissenting
numerous state statutes like Iowa’s. Brief for United
States 42, n. 12. If this task is so easy, let the Court pick a
few of those States and give the lower court judges a
demonstration.
Picking up an argument tossed off by Judge Kozinski,
the Court argues that a federal sentencing judge can get a
sense of whether the places covered by a state burglary
statute are separate elements or means by examining the
charging document. Ante, at 17–18 (citing Rendon, supra,
at 473–474 (Kozinski, J., dissenting from denial of reh’g en
banc)). If, for example, the charging document alleges
that the defendant burglarized a house, that is a clue,
according to the Court, that “house” is an element. See
ibid. I pointed out the problem with this argument in
Descamps. See 570 U. S., at ___–___ (dissenting opinion)
(slip op., at 13–14). State rules and practices regarding
the wording of charging documents differ, and just be-
cause something is specifically alleged in such a document,
it does not follow that this item is an element and not just
a means. See ibid.
The present case illustrates my point. Petitioner has
five prior burglary convictions in Iowa. In Iowa, the places
covered are “means.” See ante, at 13. Yet the charging
documents in all these cases set out the specific places
that petitioner burglarized—a “house and garage,” a “gar-
age,” a “machine shed,” and a “storage shed.” See Brief for
Petitioner 9.
A real-world approach would avoid the mess that today’s
decision will produce. Allow a sentencing court to take a
look at the record in the earlier case to see if the place that
was burglarized was a building or something else. If the
record is lost or inconclusive, the court could refuse to
count the conviction. But where it is perfectly clear that a
building was burglarized, count the conviction.
The majority disdains such practicality, and as a result
it refuses to allow a burglary conviction to be counted even
Cite as: 579 U. S. ____ (2016) 7
ALITO, J., dissenting
when the record makes it clear beyond any possible doubt
that the defendant committed generic burglary. Consider
this hypothetical case. Suppose that a defendant wishes
to plead guilty to burglary, and the following occurs in
open court on the record at the time of the plea:
PROSECUTOR: I am informed that the defendant
wishes to plead guilty to the charge set out in the
complaint, namely, “on June 27, 2016, he broke into a
house at 10 Main Street with the intent to commit
larceny.”
DEFENSE COUNSEL: That is correct.
COURT: Mr. Defendant, what did you do?
DEFENDANT: I broke into a house to steal money
and jewelry.
COURT: Was that the house at 10 Main St.?
DEFENDANT: That’s it.
COURT: Now, are you sure about that? I mean, are
you sure that 10 Main St. is a house? Could it have
actually been a boat?
DEFENDANT: No, it was a house. I climbed in
through a window on the second floor.
COURT: Well, there are yachts that have multiple
decks. Are you sure it is not a yacht?
DEFENDANT: It’s a little house.
8 MATHIS v. UNITED STATES
ALITO, J., dissenting
PROSECUTOR: Your Honor, here is a photo of the
house.
COURT: Give the defendant the photo. Mr. Defend-
ant, is this the place you burglarized?
DEFENDANT: Yes, like I said.
COURT: Could it once have been a boat? Maybe it
was originally a house boat and was later attached to
the ground. What about that?
DEFENSE COUNSEL: Your honor, we stipulate that
it is not a boat.
COURT: Well, could it be a vehicle?
DEFENDANT: No, like I said, it’s a house. It doesn’t
have any wheels.
COURT: There are trailers that aren’t on wheels.
DEFENSE COUNSEL: Your Honor, my client wants
to plead guilty to burglarizing the house at 10 Main
St.
PROSECUTOR: Your Honor, if necessary I will call
the owners, Mr. and Mrs. Landlubbers-Stationary.
They have lived there for 40 years. They will testify
that it is a building. I also have the town’s tax rec-
ords. The house has been at that location since it was
built in 1926. It hasn’t moved.
COURT: What do you say, defense counsel? Are those
records accurate?
Cite as: 579 U. S. ____ (2016) 9
ALITO, J., dissenting
DEFENSE COUNSEL: Yes, we so stipulate. Again,
my client wishes to plead guilty to the burglary of a
house. He wants to take responsibility for what he
did, and as to sentencing, . . . .
COURT: We’ll get to that later. Mr. Defendant, what
do you say? Is 10 Main St. possibly a vehicle?
DEFENDANT: Your Honor, I admit I burglarized a
house. It was not a car or truck.
COURT: Well, alright. But could it possibly be a tent?
DEFENDANT: No, it’s made of brick. I scraped my
knee on the brick climbing up.
COURT: OK, I just want to be sure.
As the Court sees things, none of this would be enough.
Real-world facts are irrelevant. For aficionados of point-
less formalism, today’s decision is a wonder, the veritable
ne plus ultra of the genre.4
Along the way from Taylor to the present case, there
have been signs that the Court was off course and oppor-
tunities to alter its course. Now the Court has reached the
legal equivalent of Ms. Moreau’s Zagreb. But the Court,
unlike Ms. Moreau, is determined to stay the course and
continue on, traveling even further away from the in-
tended destination. Who knows when, if ever, the Court
will call home.
——————
4 The Court claims that there are three good reasons for its holding,
but as I explained in Descamps, none is substantial. The Court’s
holding is not required by ACCA’s text or by the Sixth Amendment, and
the alternative real-world approach would be fair to defendants. See
570 U. S., at ___, ___–___ (ALITO, J., dissenting) (slip op., at 4, 9–11).