United States v. Tavares: What is a “Divisible” Criminal Statute and Why Does it Matter?

Early one morning in 2013, Verissimo Tavares fled the Boston Police on his motor scooter, and in the process tossed away what turned out to be a gun.  He was charged and convicted in federal court of the crime of being a felon in possession of a firearm, and was sentenced to seven years, which was a “departure” from the recommended sentence of 10-12 ½ years that the federal sentencing guidelines prescribed.

Had Mr. Tavares been a newcomer to the criminal justice system, the guidelines would have produced a recommended sentencing range of between 3 and 4 years.  His history, and in particular his previous convictions of “crimes of violence” doubled his sentence and could, without the departure, have tripled it.  In particular, Mr. Tavares had previous convictions for resisting arrest and for assault and battery with a dangerous weapon, and both of those convictions were considered “crimes of violence” by the sentencing judge, with the result that his sentencing range skyrocketed.

Not surprisingly, Mr. Tavares appealed, and the First Circuit took up, for the umpteenth time, the question of what constitutes a “crime of violence” with a substantial impact on how much time a convicted defendant will have to serve.

A “crime of violence” is defined as one that “has as an element the use, attempted use, or threatened  use of  physical  force  against the person of another.”  “Elements” of an offense are the components that a jury must find to be true beyond a reasonable doubt in order to convict.

And now we come to our topic:  what is a “divisible” offense, and why does it matter.  Ultimately, as we will see, it matters because, as in Mr. Tavares’ case, the answer can lead to a doubling or even tripling of the sentence a defendant faces.

In the Tavares appeal, decided December 1, 2016, the First Circuit had two prior convictions to consider, and we’ll look at what they did for each.  First, as to resisting arrest, the elements under consideration are:

1. Knowingly
2. Preventing or attempting to prevent a police officer
3. Acting under color of his official authority
4. From arresting the defendant or another by either
5. a. using or threatening physical force against the officer or another, or
   b. using another means that creates a substantial risk of bodily injury to the officer or another.

Here we see an example of a divisible statute.  The elements 5a and 5b are two different, alternative elements.  If the jury unanimously agree on one of them, and as well on each of the first four elements, then they find the defendant guilty.  So the statute, effectively, states two distinct crimes.  For reasons we will not go into here, 5b is (no longer) considered a “crime of violence.”  Because the statute is divisible, if it can be demonstrated for sentencing purposes that the conviction was based on finding element 5a rather than 5b, the defendant is facing a substantial sentencing penalty; where it cannot, no such additional penalty should apply.  In Tavares, the sentencing court did not determine whether the conviction was based on element 5a, so the First Circuit sent the case back for such a determination.

Second, the Court looked at Assault and Battery with a Dangerous Weapon, which at first look appears also to be divisible:  it is either

The intentional use of force, however slight, accomplished with a dangerous weapon, or

The reckless or wanton commission of an act, with a dangerous weapon, that causes injury to another.

The Court was looking, however, at a state offense, and so had to look to the interpretation of state courts.  Several Massachusetts Appeals Court decisions held that there is no requirement that a jury find one or the other of these two ways of committing ABDW unanimously – that they are two “aspects” of the same offense, and a defendant can be convicted of ABDW if some jurors find that (s)he acted recklessly and thereby caused injury, while others find that (s)he acted intentionally.  These decisions, the Court concluded, would not be approved by the Supreme Judicial Court, the highest state court, because the two involve different mens rea requirements – intentional vs. reckless.   The Court relied on an earlier SJC decision that reasoned that distinct theories of guilt – ones requiring the jury to find different elements unanimously – would be “substantively distinct and dissimilar” and that different mens rea requirements were such dissimilar requirements.  So, despite state court precedent, albeit from an intermediate court, holding that ABDW does not have two separate branches proved by separate elements, the First Circuit concluded that ABDW is divisible and thus does have two separate branches, with two different sets of elements.

The issue whether Mr. Tavares had been convicted of a “crime of violence” then resolved into whether he had committed an intentional touching with a dangerous weapon, which the Court had earlier held was a crime of violence, or a reckless touching resulting in injury, which the Court concluded remained in doubt.  On this branch, too, the case was remanded for determination whether it could be determined which branch was the branch of conviction, with anticipation that the case might come back to the First Circuit on the issue whether the second branch is a crime of violence.

I have elided much of the discussion in the opinion, which discussed what the Court characterized as a “Rube Goldberg jurisprudence of abstractions piled on top of one another in a manner that renders doubtful anyone’s confidence in predicting what will pop out at the end.”  All of this, whether a state statute is “divisible” or not, is an abstract inquiry the outcome of which bears concrete consequences, years of a person’s life.  That the distinction between a “slight” but intentional touching, or a reckless touching that results in harm, could cause a sentence in a separate proceeding to triple, is mind-boggling.  The effort, to capture dangerous repeat offenders, is understandable.  The scheme developed to effectuate that effort is incomprehensible, both in the attempt to apply it and in the results.