United States v. Harvey Mungro, Jr.
2014 U.S. App. LEXIS 10850
| 4th Cir. | 2014Background
- Appellant Harvey Lee Mungro was convicted under 18 U.S.C. § 922(g) for being a felon in possession of a firearm and the district court applied the ACCA, imposing a mandatory 15-year sentence based on three prior North Carolina convictions under N.C. Gen. Stat. § 14-54(a) ("breaking or entering").
- The central legal question was whether North Carolina’s "breaking or entering" statute qualifies as "burglary" under the ACCA’s generic-burglary definition, making those prior convictions ACCA predicates.
- The ACCA defines a "violent felony" to include any offense that "is burglary," which is judged by comparing a state statute’s elements to the generic definition from Taylor v. United States: unlawful or unprivileged entry into a building or other structure with intent to commit a crime.
- Although § 14-54(a)’s text could be read broadly to cover entries made with consent, the North Carolina Supreme Court in State v. Boone construed the statute to exclude entries made with the owner’s consent; a consented entry cannot form the basis for conviction under § 14-54(a).
- Mungro argued Boone’s footnote and some lower-court decisions suggest consent can be voided retroactively if the entrant later commits the intended crime, which would make § 14-54(a) broader than generic burglary; the Fourth Circuit rejected that reading.
- The Fourth Circuit held § 14-54(a), as interpreted by Boone, requires either breaking or entering without consent with intent to commit felony/larceny, aligning it with the generic burglary elements and qualifying it as an ACCA predicate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N.C. Gen. Stat. § 14-54(a) (breaking or entering) is a "burglary" under the ACCA generic definition | Mungro: § 14-54(a) is broader because it can cover entries made with owner consent (statutory text) and possibly allow consent to be voided retroactively | Government: Boone (N.C. Sup. Ct.) construes § 14-54(a) to require lack of consent or breaking, matching generic burglary | Court: § 14-54(a), as interpreted by Boone, comports with generic burglary and is an ACCA predicate |
| Whether subsequent criminal acts (e.g., theft) can render prior consent void ab initio so § 14-54(a) sweeps more broadly than generic burglary | Mungro: Boone’s footnote and some NC Court of Appeals decisions allow later acts to void consent retroactively, broadening the statute | Government: Boone’s holding explicitly rejects using consented entry as basis for § 14-54(a) conviction; lower-court opinions do not override the state supreme court’s construction | Court: Boone’s opinion forecloses treating subsequent theft as voiding initial consent; § 14-54(a) does not sweep beyond generic burglary |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (establishes generic-burglary definition and categorical approach)
- Descamps v. United States, 570 U.S. 254 (clarifies limits on categorical approach and that generic burglary excludes entries open to the public)
- Johnson v. United States, 559 U.S. 133 (instructs use of state high-court interpretations to determine statute elements)
- State v. Boone, 256 S.E.2d 683 (N.C. 1979) (North Carolina Supreme Court construes § 14-54(a) to exclude entries made with owner consent)
- Apprendi v. New Jersey, 530 U.S. 466 (addressed and noted by parties regarding fact-finding for sentencing)
- United States v. Bowden, 975 F.2d 1080 (4th Cir. precedent concluding § 14-54(a) fits generic burglary, cited but not necessary to resolve the case)