U.S. Sentencing Commission Publishes Proposed Guideline Amendments for Comment on the Categorical Approach
Among other proposed changes, of interest to the immigration community is the proposed change regarding the “categorical approach,” which is a legal test long used by courts to determine if a conviction qualifies for certain sentencing enhancements. The categorical approach is also relied on to analyze the immigration consequence of criminal convictions.
Under the proposed amendment, the categorical approach would be eliminated from the guidelines by defining “crime of violence” and “controlled substance offense” based upon a list of guidelines, rather than offenses or elements of an offense.
As the Commission explains further:
Even though Supreme Court jurisprudence on this subject pertains only to statutory provisions (e.g., 18 U.S.C. § 924(e)), courts have applied the categorical approach and the modified categorical approach to guideline provisions. For example, courts have used these approaches to determine if a conviction is a “crime of violence” or a “controlled substance offense” for purposes of applying the career offender guideline at §4B1.1. Additionally, several other guidelines, such as §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition), also rely upon the career offender guideline’s definitions of “crime of violence” and “controlled substance offense.” Therefore, courts have also used the categorical approach for purposes of these guidelines.
Commissioner Chair Judge Reeves is quoted in the press release announcing the proposed amendments: “I have heard consistently from judges throughout the nation that the categorical approach should be reconsidered. Judges are far too often flummoxed by how to apply the categorical approach. This is certainly a matter that the Commission will continue to discuss and one that warrants a public hearing,” Judge Reeves said.
Stay tuned! The Commission will hold public hearings in February and March to receive expert testimony on the proposed amendments.
IE