What role does the text of a statute play in the divisibility analysis under the categorical approach of the Armed Career Criminal Act?

QUESTIONS PRESENTED In Mathis v. United States, 136 S. Ct. 2243 (2016), this Court clarified the divisibility analysis that must be conducted when applying the categorical approach to prior state convictions underlying federal sentencing enhancements. Under Mathis, a statute of conviction that lists alternative elements that create multiple crimes is divisible—and thus subject to the modified categorical approach— whereas a statute that lists only multiple means of committing a single defined offense is indivisible. “Elements” are “the things the prosecution must prove to sustain a conviction,” whereas “means” are the facts of “[h]ow a given defendant actually perpetrated the crime,” which are “extraneous to the crime’s legal requirements” and need not be found by a jury. Id. at 2248, 2251. In Mathis, this Court held that to distinguish between elements and means in a state statute of conviction, federal sentencing courts should look to “authoritative sources of state law,” such as “a state court decision [that] definitively answers the question” of whether a particular statutory alternative must be proven to a jury. See id. at 2256. The Court further explained that “the statute on its face may resolve the issue” in three ways. First, the “statutory alternatives [may] carry different punishments” and therefore must be elements under Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, the statute may be drafted to offer “illustrative examples,” and are therefore means of committing a crime. And third, the statute “may itself identify which things must be charged (and so are elements) and which need not be (and so are means).” In the wake of Mathis, the federal courts of appeals are divided on what role the text of the statute plays in the divisibility inquiry. Seven circuits—the Second, Fourth, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits—hew closely to the textbased analysis described in Mathis and require a statute’s text to resolve the question with certainty, by looking for unmistakable textual clues. Five circuits, including the Fifth Circuit in this case, have answered the inquiry by simply reading the text of the statute and often drawing conclusions from the presence of the disjunctive “or.” This approach takes its cue from the Court’s earlier decision in Descamps v. United States, 570 U.S. 254 (2013), where the Court emphasized the disjunctive “or” when describing a hypothetical statute that involved alternative elements. See 570 U.S. at 257. In light of the foregoing, the questions presented are: 1 QUESTIONS PRESENTED -— (cont’d) I. What role does the text of a statute play in the divisibility analysis under the categorical approach of the Armed Career Criminal Act? IL. Is the Texas offense of aggravated robbery, Texas Penal Code § 29.03(a), a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)? ii