Second Circuit Vacates Sentence Based on Failure to Apply the Categorical Approach
In United States v. Genao, No. 16-924 (Katzmann, Lynch, Chin), the Second Circuit examined the application of the categorical approach to a prior burglary conviction that indisputably involved threats of physical harm but whose minimal elements arguably did not meet the Guidelines’ definition of a “crime of violence.” The Second Circuit reaffirmed that the categorical approach requires evaluation of the elements of conviction, not the facts of conviction, making it reversible error for the district judge to have “short circuited” the analysis by starting with the facts. But the Second Circuit emphasized that in an advisory-Guidelines world, the district court is free to take those facts of conviction into account in exercising its discretion to set the final sentence. So long as the sentencing correctly applies and calculates the appropriate Guidelines sentence, the court is then liberated—indeed required—to pick the sentence that it believe best fits the crime.
This appeal involves Roman Bartolo Genao, a Dominican national and former lawful permanent resident of the United States who was convicted for illegally attempting to re-enter the United States after having been removed six years earlier. Genao’s removal was precipitated by his conviction for first-degree burglary and first-degree robbery. According to the Pre-Sentencing Report (“PSR”), and not disputed by Genao, the earlier crime was a “home invasion” where Genao “pushed his way into the victim’s home, grabbed her by the hair, placed a knife against her throat, and demanded money.” When Genao was sentenced, the district court applied a 16-level enhancement on the basis that the robbery conviction was a “crime of violence” under the then-operative Sentencing Guidelines. In its “sparse and general remarks” explaining the sentence, the only support the district court gave for the enhancement was his conclusion that putting a knife to a victim’s throat was a crime of violence.
The Second Circuit vacated the sentence because the district court failed to apply the categorical approach, which limits the evaluation to the minimum elements that must be proven for conviction, not the actual facts that underlay a conviction. The justification is “a concern for fairness to defendants,” who may see no reason to admit or contest facts that are irrelevant to conviction. Applying the categorical approach, the Court noted a dispute over whether the New York crime of first degree burglary with a dangerous weapon fit the Guidelines definition of a crime of violence either as “burglary of a dwelling” or “any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” (The prior conviction for robbery—more easily recognized to be a crime of violence—could not establish the basis for the enhancement because, as all sides agreed, the PSR misstated the statute under which Genao was convicted for robbery, and nothing indicated that the district court corrected the error in adopting the sentence.)
The government conceded that New York’s burglary statute reaches more conduct than the generic federal definition of burglary because it is not restricted to crimes committed in a “dwelling.” Applying the modified categorical approach—which allows the court to look to the indictment, jury instructions, plea agreement, or plea colloquy—did not support the sentence here because none of those documents were submitted to the sentencing court. Rather, the sole basis for the enhancement was the district court’s reference to the facts of conviction. It is hard to know why the government did not make more of an effort to carry its burden under the categorical approach. The use of the categorical approach is not a secret or unknown issue; how this and similar provisions are to be interpreted seems to be the subject of at least one decision each term by the Supreme Court. E.g., Mathis v. United States, 136 S. Ct. 2243 (2016) (construing categorical approach in the context of the Armed Career Criminals Act).
The Second Circuit went on to consider what role the facts of conviction can play in a sentencing, noting that the categorical approach “may appear unduly technical” and that “the district court’s assumption that [Genao’s] crimes were unquestionably violent has strong common sense appeal.” After all, police reports explain that the defendant put a knife to a woman’s throat and took more than $5000 from her, threatening to kill her family and burn down her home if she called the police. Judge Lynch explained that the facts of conviction, if sufficiently well-established, are not irrelevant to sentencing simply because they cannot be considered under the categorical approach, because they still can be considered under the § 3553(a) factors. That, however, is not what the district court did here.
In the end, it is not clear what all of this will mean for Genao’s sentence. The Second Circuit remanded for sentencing de novo because the more recent version of the Guidelines did away with the complicated “crime of violence” analysis—in part because of the difficult questions raised by the categorical approach—replacing it with an enhancement calculation based on the length of the longest possible sentence. The Commission viewed the old rule as both overly complex and also overly severe—a bad recipe for sentencing law and policy. On remand, Genao will be sentenced under this new regime.
-By Stephanie Teplin and Harry Sandick