If a criminal statute of conviction is divisible, what is the test for determining which criminal offence was the basis of the conviction?

MultiRegion, United States of America

The following excerpt is from Orellana v. Mayorkas, 20-16092 (9th Cir. 2021):

Second, if the criminal statute of conviction is divisible, meaning it "sets out one or more elements of the offense in the alternative," a court must address a single factual question: "which of the [alternative] statutory offenses (generic or non-generic) formed the basis of the defendant's conviction." Descamps, 570 U.S. at 257, 265. To make this determination, a court may review only a narrow category of documents, such as "the indictment or information and jury instructions or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or some comparable judicial record of the factual basis for the plea." Nijhawan, 557 U.S. at 35 (cleaned up). The court may not look at other evidence to determine what crime the person actually committed, because that would amount to a collateral trial. Shepard v. United States, 544 U.S. 13, 23 (2005).

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