Did 9th Circuit Take Sentencing Liberties?

     (CN) – The Supreme Court on Friday accepted the sentencing dispute of a repeat offender who was convicted previously under a California burglary law that is broader than the generic definition.
     In affirming the 21-year sentence of Matthew Descamps, the 9th Circuit found that the defendant’s prior burglary felony qualifies as a violent felony under the Armed Career Criminals Act.
     It reached this determination by applying “a modified categorical approach” to get around the fact that California Burglary Statute Section 459 does not require as an element that a burglar enter or remain unlawfully in a building.
     “Burglary under § 459 is categorically broader than generic burglary both because it includes burglary of a tent and because ‘California’s definition of “unlawful or unprivileged entry,” unlike the generic definition, permits a conviction for burglary of a structure open to the public and of a structure that the defendant is licensed or privileged to enter if the defendant enters the structure with the intent to commit a felony,'” according to the court’s unpublished opinion in January.
     On Friday, the Supreme Court took up the case and published the question it plans to answer: “Whether the Ninth Circuit’s ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.”

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