Whether the Third Circuit's test for divisibility is consistent with Mathis

QUESTIONS PRESENTED In Mathis v. United States, 579 U.S. 500, 506 (2016), this Court held that the test for whether a statute is “divisible,” for purposes of applying the modified categorical approach, is juror unanimity: if unanimity on the pertinent statutory alternative is required for conviction, the alternative is an element and the statute is divisible; if unanimity is not required, the alternative is merely a means of commission and the statute is indivisible. The Court also reaffirmed that, under both the categorical and modified categorical approaches, facts are irrelevant and state law governs the elements of state offenses. Jd. at 504, 517-18. The questions presented are: Whether the Third Circuit’s test for divisibility—which makes subsection organization dispositive, and which permits examination of facts if a statute is divisible in any way, even if it is indivisible as to the pertinent statutory alternatives—is consistent with Mathis. Whether federal courts, in applying the categorical and modified categorical approaches, may engage in plenary statutory construction of state statutes that is inconsistent with the statutory construction rules mandated by state law. i