Professor Sheldon Evans’s essay, In the Shadow of Shular: Conduct Can Unify the Disjointed Categorical Approaches, will be published in an upcoming issue of the Federal Sentencing Reporter.

An abstract of the essay appears below:

The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing system; by basing federal punishment on state-law criminal definitions, similar defendants are often treated differently based on what state they may have committed past crimes.

But the Supreme Court’s recent decision in Shular v. United States offers a different approach. In analyzing a slightly different section of the ACCA, the Court determined that a conduct-based categorical approach was appropriate. In these narrow sections of the ACCA, federal punishment would be based on analyzing the previous conduct of the defendant’s past crimes, as opposed to the state-law criminal elements. This Article argues that the Court’s approach in Shular can and should be expanded to all sections of the ACCA to fix the existing problems of state-to-state nonuniformity. By excising reliance on state law, and by accounting for the morally relevant sentencing factor of how a defendant may have committed past crimes (as opposed to where they committed them), a conduct-based categorical approach can remedy much of the existing confusion surrounding ACCA sentencing and achieve the uniformity that the Court always intended.