Descamps v. United States

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of Petitioner.

Brief filed: 10/31/2012


Descamps v. United States

United States Supreme Court; Case No. 11-9540

Prior Decision

Decision below 466 Fed.Appx. 563 (9th Cir. 2012)

Question Presented

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.


 The Ninth Circuit construed the Supreme Court’s Modified Categorical Approach to permit a dramatic exception to the Categorical Approach’s limited elements-based inquiry, but the Modified Categorical Approach does not apply to missing-element statutes. Applying the Modified Categorical Approach to missing-element statutes would render the ACCA unconstitutional in many applications and poses significant practical difficulties and risks manifest unfairness. If there is no way to distinguish among applications of the Modified Categorical Approach, it should be abandoned, not expanded.

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Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC; Jeffrey L. Fisher and Pamela S. Karlan, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA.