What is the test for determining whether a statute criminalizes multiple acts in the alternative, thereby defining multiple crimes?

MultiRegion, United States of America

The following excerpt is from United States v. Moore, 916 F.3d 231 (2nd Cir. 2019):

In the event a statute criminalizes multiple acts in the alternative, thereby defining multiple crimes, it is considered "divisible," and we apply the modified categorical approach. Id. A statute is not considered divisible if, instead of defining multiple crimes, it lists various factual means of committing a single crime. Id. For example, a statute that prohibits "the lawful entry or the unlawful entry of a premises with intent to steal" is divisible because it criminalizes two alternative offensesthe less serious offense of burglary with lawful entry and the more serious offense of burglary with unlawful entry. See Mathis v. United States, U.S. , 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (internal quotations omitted). In a case like that, a court would apply the modified categorical approach and look to "a limited class of documents," such as "the indictment, jury instructions, or plea agreement and colloquy" to determine which of those two alternative offenses was the offense of conviction. Id. (internal quotations omitted). The court would then return to the categorical analysis and compare the elements of the offense of conviction with the elements of the relevant generic offense. Id.

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