938 F.3d 766
6th Cir.2019Background
- Tracy Greer pleaded guilty in 2007 to being a felon in possession of a firearm and related offenses; his plea agreement and sentence treated five prior Ohio aggravated-burglary convictions (Pre–Senate Bill 2, R.C. § 2911.11(A)(3)) as ACCA predicates.
- After Johnson v. United States invalidated the ACCA residual clause, Greer moved under 28 U.S.C. § 2255 to vacate his ACCA-enhanced sentence; the district court denied relief, finding the Ohio aggravated-burglary statute still fell within the ACCA’s enumerated “burglary” clause.
- The Ohio Pre–SB2 aggravated-burglary provision criminalized trespass in an occupied structure that is a “permanent or temporary habitation” in which a person is “present or likely to be present,” while the occupied-structure definition expressly listed vehicles, tents, trailers, etc.
- Greer argued the statute is broader than “generic burglary” because it covers vehicles and other nonbuilding locations; the government initially conceded similarity to Tennessee law at issue in Stitt but preserved the right to relitigate after the Supreme Court granted review in Stitt.
- The Sixth Circuit rejected the government’s attempt to invoke Greer’s plea stipulation and appellate waiver (finding the government forfeited those arguments), applied the categorical approach, and examined whether Ohio’s habitation/presence requirements make the statute align with the generic burglary definition.
- The court concluded the Pre–SB2 Ohio aggravated-burglary statute qualifies as generic burglary for ACCA purposes because its habitation and presence elements meaningfully restrict scope and it substantially corresponds to a majority of state burglary statutes existing when ACCA was enacted.
Issues
| Issue | Plaintiff's Argument (Greer) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Whether Ohio Pre–SB2 aggravated burglary (§2911.11(A)(3)) is a "generic burglary" under the ACCA enumerated-offense clause | Statute is broader than generic burglary because its definition of "occupied structure" expressly includes vehicles and other nonbuilding locations | Statute is narrowed by the terms "habitation" and "present or likely to be present," aligning it with generic burglary and Stitt's reasoning | Held: §2911.11(A)(3) qualifies as generic burglary; habitation/presence elements sufficiently limit scope; convictions are ACCA predicates |
| Whether Greer’s ACCA challenge was waived by his plea stipulation and appellate waiver | Greer contends waiver should not bar collateral review because the government forfeited raising waiver arguments below | Government contends waiver and plea stipulation bar the challenge | Held: Government forfeited its waiver arguments by not raising them in district court; appellate review proceeds on the merits |
Key Cases Cited
- United States v. Stitt, 139 S. Ct. 399 (2018) (SCOTUS: burglary statutes covering vehicles adapted or customarily used for lodging fall within generic burglary)
- Taylor v. United States, 495 U.S. 575 (1990) (defines "generic" burglary for ACCA as unlawful entry of a building or other structure with intent to commit a crime)
- Descamps v. United States, 570 U.S. 254 (2013) (categorical approach: compare statute's elements to generic offense)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (presume conviction rests on least conduct criminalized; require realistic probability, not theoretical possibility)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (statutory divisibility and when the modified categorical approach applies)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson held retroactive on collateral review)
- Olano v. United States, 507 U.S. 725 (1993) (distinguishes waiver from forfeiture; intentional relinquishment standard)