(B) Discrete Subsections.  There are two basic situations in which a statute may correctly be said to be “divisible.”  The clearest case of a divisible statute is where a statute has a number of different subdivisions, each defining a single separate crime. 

 

For example: “Section 265.01 of the New York Penal Law consists of five subdivisions.  The third subdivision involves a firearm, and the first subdivision could, but might not necessarily, involve a firearms conviction.  As such, it is a divisible statute.”[36]  If the judgment, for example, specifies only that the defendant was convicted of violating N.Y. Penal Law § 265.01, but does not specify a particular subdivision, the court may examine the rest of the record of conviction to determine whether the defendant was convicted of § 265.01(1), (2), (3), (4), or (5).  Since (2), (4), and (5) do not require use of a firearm as an essential element, if the record as a whole does not establish which subdivision the defendant was convicted of violating, then the party with the burden of proof cannot show that the conviction clearly was a firearms conviction.  Obviously, if the record specifically identifies (2), (4), or (5) as the offense of conviction, the conviction cannot be considered a firearms conviction.  Since (1) may or may not require use of a firearm, that subsection is subject to the “minimum conduct” analysis, and if the record of conviction revealed that the noncitizen was convicted under that subsection, the government cannot establish deportability.[37]

[36] Matter of Madrigal-Calvo, 21 I. & N. Dec. 323, 325 (BIA 1996).

[37] See also United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. Aug. 4, 2004) (Pennsylvania conviction for terroristic threats, in violation of 18 Pa. Cons. Stat. § 2706(a)(2003), was not established to be a crime of violence, under USSG § 2L1.2, comment (b)(ii)(I), for purposes of enhancing a sentence for illegal re-entry, since the offense is divisible and only the first of the three subsections qualifies as a crime of violence).

CONVICTION - DIVISIBLE STATUTE ANALYSIS - TAYLOR ANALYSIS APPLIES TO CONVICTIONS RESULTING FROM PLEA AND COURT TRIAL AS WELL AS JURY TRIAL
Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005) (a court sentencing under the Armed Career Criminal Act may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary so as to serve as a predicate offense for a sentence enhancement).
http://laws.findlaw.com/us/000/03-9168.html      Relying on its sentencing enhancement cases, the First Circuit has refused to bar an immigration factfinder from examining a police report as part of the record of conviction in determining whether a noncitizen has been convicted of an aggravated felony. Emile v. INS, 244 F.3d 183 (1st Cir. 2001) (relying on United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and United States v. Shepard, 231 F.3d 56 (1st Cir. 2000) to hold that there is no due process problem where factfinder considers police report as part of the record of conviction).  The United States Supreme Court, in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), overruled United States v. Harris, 964 F.2d 1234 (1st Cir. 1994) and reversed United States v. Shepard, 231 F.3d 56 (1st Cir. 2000).  Therefore, Emile is no longer good law since the two cases on which it rests have been reversed or overruled by the United States Supreme Court, which expressly rejected the reasoning on which it relied.      Thanks to Dan Kesselbrenner for this analysis.      In Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (March 7, 2005), the United States Supreme Court held that the categorical analysis of Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), applies to the determination of whether a conviction resulting from a guilty plea constitutes a generic burglary conviction, so as to served as a predicate conviction under the Armed Career Criminal Act to enhance a federal criminal sentence. The court therefore held that this determination was based on a categorical analysis of the elements of the offense of conviction, rather than the underlying facts of the case, and the sentencing court was precluded from considering the facts contained in police reports or complaint summaries. Instead, the Taylor analysis is limited to consideration of the charge to which a plea is entered, the plea agreement, and any facts agreed to by the defendant during the plea process. The Supreme Court also suggested that the same analysis (appropriately modified) would be applied to convictions resulting from court trials.      The court summarized its holding as follows: The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary. We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Ibid. at 1257.      In the process of reaching its decision, the court stated: We agree with the First Circuit (and every other Court of Appeals to speak on the matter) that guilty pleas may establish ACCA predicate offenses and that Taylor's reasoning controls the identification of generic convictions following pleas, as well as convictions on verdicts, in States with non-generic offenses. See 348 F.3d, at 312, n. 4 (citing cases). Shepard wisely refrains from challenging this position, for the ACCA nowhere provides that convictions in tried and pleaded cases are to be regarded differently. It drops no hint that Congress contemplated different standards for establishing the fact of prior convictions, turning on the basis of trial or plea. Nothing to that effect is suggested, after all, by the language imposing the categorical approach, which refers to predicate offenses in terms not of prior conduct but of prior "convictions" and the "element[s]" of crimes. Taylor, 495 U.S., at 600-601, 110 S.Ct. 2143 (citing 18 U.S.C. 924(e)). Nor does the Act's legislative history reveal a lesser congressional preference for a categorical, as distinct from fact-specific, approach to recognizing ACCA predicates in cases resolved by plea. Taylor, 495 U.S., at 601, 110 S.Ct. 2143. And certainly, "the practical difficulties and potential unfairness of a factual approach are daunting," ibid., no less in pleaded than in litigated cases. Finally, nothing in Taylor's rationale limits it to prior jury convictions; our discussion of the practical difficulties inherent in looking into underlying circumstances spoke specifically of "cases where the defendant pleaded guilty, [in which] there often is no record of the underlying facts." Ibid. Our job, then, is to find the right analogs for applying the Taylor rule to pleaded cases. Ibid. at 1259.      This reasoning applies with equal force to the question whether Congress intended to apply the repeal of INA 212(c) relief retroactively to disturb the settled expectations of those defendants whose convictions resulted from jury trials, rather than from guilty pleas. The legislative history and purposes of the repeal are barren of any suggestion that Congress meant to distinguish between convictions resulting from jury trials, as opposed to guilty pleas, for this purpose.      The Supreme Court therefore reaffirmed the Taylor reasoning, which was announced in a case in which the conviction resulted from a jury trial, and applied it to convictions resulting from court trials and guilty pleas: The Court did not, however, purport to limit adequate judicial record evidence strictly to charges and instructions, id., at 602, 110 S.Ct. 2143 (discussing the use of these documents as an "example"), since a conviction might follow trial to a judge alone or a plea of guilty. In cases tried without a jury, the closest analogs to jury instructions would be a bench-trial judge's formal rulings of law and findings of fact, and in pleaded cases they would be the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea. With such material in a pleaded case, a later court could generally tell whether the plea had "necessarily" rested on the fact identifying the burglary as generic, Taylor, supra, at 602, 110 S.Ct. 2143, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case. Ibid. at 1259-1260 (footnote omitted). Therefore, in the context of a conviction resulting from a court trial, the court applying a categorical analysis may consider the charge of conviction and the "bench-trial judge's formal rulings of law and findings of fact . . . ." Ibid. at 1259. The court may not look to police reports or complaint applications.      In the context of a conviction resulting from a guilty plea, the court applying a categorical analysis may consider the charge of conviction and "the statement of factual basis for the charge, Fed. Rule Crim. Proc. 11(a)(3), shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea." Ibid. at 1259-1260. The court may not look to police reports or complaint applications.

Fifth Circuit

DIVISIBLE STATUE ANALYSIS - CONJUNCTIVE/DISJUNCTIVE CRIMINAL CHARGES
Omari v. Gonzales, __ F.3d __, 2005 WL 1714364 (5th Cir. July 25, 2005) ("Reference in the indictment to "stolen, converted and fraudulently obtained property," as opposed to "stolen, converted or taken by fraud," as recited in the statute does not mean that Omari was necessarily convicted of transferring fraudulently obtained property. Indictments often allege conjunctively elements that are disjunctive in the statute, and this does not require either the government prove all of the statutorily disjunctive elements or that a defendant admit to all of them when pleading guilty."), following Valansi v. Ashcroft, 278 F.3d 203, 215 n. 10 (3d Cir. 2002).
http://caselaw.lp.findlaw.com/data2/circs/5th/0361014p.pdf

Ninth Circuit

DISJUNCTIVE STATEMENT - MEANING
United States v. Karaouni, 379 F.3d 1139 (9th Cir. Aug. 24, 2004) ("Karaouni contends that no rational trier of fact could find beyond a reasonable doubt that his verification of the printed statement on the I-9 Form constituted a violation of 911 because the printed statement was phrased in the disjunctive. See Prince v. Jacoby, 303 F.3d 1074, 1080-81 (9th Cir.2002) (explaining that the use of the disjunctive "or" suggests that terms in a sequence should not be interpreted as synonyms). According to Karaouni, by checking the box next to the printed statement, which the government presumably drafted with care, he merely claimed that he was a citizen or a national, not that he was a citizen and not that he was a citizen and a national.").