Wednesday, June 04, 2014

Tenth applies modified categorical approach to Minnesota statute for career offender purposes

U.S. v. Wright, 2014 WL 1924605 (5/15/14) (Kan.) (unpub'd) - The 10th applies the modified categorical approach to a separate definitional statute. Descamps did not deal with such a situation and so it did not abrogate the 10th's prior decision in U.S. v. Ventura-Perez, 666 F.3d 670 (10th Cir. 2012), which did apply the modified categorical approach in that situation. The Minnesota provision that defined "sell" was divisible since its definitions were in the alternative. Using the modified categorical approach, it was okay to examine the police officer's description of the facts contained in a complaint, which would ordinarily not be proper to consider, because under Minnesota law the complaint is part of the charging document. Only by reading the complaint page, which was attached to the counts recitation (p. 2) and the judge finding of probable cause (p. 3), could the 10th determine the charge was under the "sell" clause of the "sell" definition, not the "offer to sell" part. So Mr. Wright is a career offender.