Categorical Confusion

If the categorical and modified categorical approaches weren't confusing enough, take a look at the Tenth's latest foray into prior conviction analysis in US v. Maldonado-Lopez. The defendant appealed the district court's determination that his three prior misdemeanor convictions warranted a four-level bump under 2L1.2(b)(1)(E). At issue was whether each of the prior misdemeanor was properly classified as a crime of violence. The district court analyzed two of the available transcripts for the prior convictions, but relied solely on a judgment for the third. Because the Colorado statute at issue criminalized behavior that did not necessarily involve physical force, the Tenth declined to apply the categorical approach. Because the third conviction, for which there was no plea transcript, did "not describe Defendant's actual conduct but only the statutory section to which he pled guilty," the district court erred in classifying the prior conviction as a crime of violence.

More interesting than the result in Maldonado-Lopez, however, is Judge McConnell's concurring opinion, which begins with the observation that "[t]his Circuit's precedent has become confused regarding when to use the pure 'categorical method,' when to use the 'modified categorical method,' and when to use the 'factual approach,' in determining when various sentencing enhancements apply on account of prior convictions." McConnell details the muddled state of Tenth Circuit law on the issue of the categorical approach, even noting that his own prior opinions contradict one another. While McConnell observes that Maldonado-Lopez does not present the occasion to fully clarify the Tenth Circuit's contradictions, he does remark that "[i]t thus appears our Circuit has been overly casual in considering what role charging papers and plea agreements play in determining the elements of a crime. At some point we will have to resolve that contradiction in our case law and determine whether the 'modified categorical approach' can properly be used in determining the elements of a state-law offense."