TRACY A. GREER v. UNITED STATES OF AMERICA
No. 16-4755
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
September 12, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0237p.06
Argued: May 3, 2019
Before: GUY, CLAY, and GRIFFIN, Circuit Judges.
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:06-cr-00559-1; 1:16-cv-01185—James S. Gwin, District Judge.
COUNSEL
ARGUED: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY‘S OFFICE, Cleveland, Ohio, for Appellee.
GRIFFIN, Circuit Judge.
The only issue in this appeal is whether the crime of aggravated burglary, as defined by two now-repealed Ohio statutes, qualifies as generic burglary under the enumerated-offense clause of the Armed Career Criminal Act (“ACCA”) in light of recent Supreme Court guidance. See, e.g., United States v. Stitt, 139 S. Ct. 399 (2018). The district court held that petitioner Trаcy Greer‘s aggravated burglary convictions qualified as “violent felonies” under the ACCA‘s enumerated-offense clause and denied Greer‘s petition. We agree and affirm.
I.
The ACCA imposes a mandatory minimum sentence of fifteen years for a conviction under
After the Supreme Court invalidated what was commonly referred to as the ACCA‘s “residual clause,” see Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), and made that decision retroactive to cases on collateral review, see Welch v. United States, 136 S. Ct. 1257, 1261 (2016), Greer timely moved to vacate his sentence under
While Greer‘s appeal was pending, we decided United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), and held that Tennessee‘s aggravated burglary statute was not a “violent felony” under the ACCA because its definition of “habitation” had a broader scope than the enumerated offense of generic burglary under
II.
“In reviewing the denial of a
III.
As a preliminary matter, the government argues that Greer has waived his ACCA argument for two reasons. First, in the plea agreement, Greer stipulated that he was “punishable as an Armed Career Criminal.” Second, the plea agreement included an appellate waiver, which limited Greer‘s right to file both a direct appeal and a collateral attack on his conviction or sentence. While the appellate waiver contаined an exception allowing Greer “to appeal any punishment in excess of the statutory maximum,” the government argues that the waiver should apply here because that exception covers direct appeals, not collateral attacks. The government argues that each of these two concessions constitutes the “intentional relinquishment or abandonment of a known right” and urges us to reject Greer‘s appeal as waived. United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
But the government‘s arguments are undercut by a potent bit of irony. Typically, this court reviews only those issues adequately preserved for appeal. When a party neglects to advance a particular issue in the lower court, we consider that issue forfeited on appeal. United States v. Archibald, 589 F.3d 289, 295–96 (6th Cir. 2009). And, “as with any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion.” Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir. 1998) (citation omitted); see also Olano, 507 U.S. at 733–34 (clarifying the distinction between waiver and forfeiture). For whatever reason, the government decided not to pursue either of its waiver arguments before the district court. Thus, it has forfeited them on appeal.
The government points out that our forfeiture rule is not inflexible, and that we have the power to excuse its forfeiture here. See Cradler v. United States, 891 F.3d 659, 666 (6th Cir. 2018). But we typically do so only in “exceptional cases,” and the government offers no compelling reasons to justify departing from our usual practice. Id. (quoting Wood v. Milyard, 566 U.S. 463, 473 (2012)); see Jones Bros., Inc. v. Sec‘y of Labor, 898 F.3d 669, 677–78 (6th Cir. 2018). In fact, the government‘s position is particularly brazen here; the government asks us to excuse its forfeiture, then turn around and enforce Greer‘s waivers to dispose of this appeal. We decline to do so. After all, “[o]ur function is to review the case presented to the district court, rather than a better case fashioned” later on appeal. DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006) (citation omitted). We therefore proceed to the merits.
IV.
The government argues that Greer‘s convictions fall within the enumerated offense of “burglary” under
“[T]he contemporary understanding of ‘burglary’ has diverged a long way from its commonlaw roots.” Taylor v. United States, 495 U.S. 575, 593 (1990). So the proper setting for examining the contours of generic burglary is not its understanding at common law, but rather its understanding at the time the ACCA was passed, as evidenced in the criminal codes of the states. Id. at 598. Using this approach, the Court concluded that “the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id.
All of Greer‘s previous convictions were for aggravated burglary under Ohio law. See
No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:
(1) The offender inflicts, or attempts or threatens tо inflict physical harm on another;
(2) The offender has a deadly weapon or dangerous ordnance as defined in section 2923.11 of the Revised Code on or about his person or under his control;
(3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present.
Section 2909.01 defined “occupied structure” as follows:
An “occupied structure” is any house, building, outbuilding, watercraft, aircraft,
railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies: (A) Which is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied, and whether or not any person is actually present;
(B) Which at the time is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present;
(C) Which at the time is specially adapted for the overnight accommodation of any person, whether or not any person is actually present;
(D) In which at the time any person is present or likely to be present.
Greer argues that
A.
Our analysis begins with the Supreme Court‘s decision in Stitt, 139 S. Ct. 399.3 The question presented in that case was “whether the statutory term ‘burglary’ includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.” Id. at 403–04. In consolidated appeals, the Court considered Arkansas’ and Tennessee‘s burglary statutes. The Tennessee statute
defines “[a]ggravated burglary” as “burglary of a habitation.” Tenn. Code Ann. § 39-14-403(a) (1997). It further defines “[h]abitation” to include: (1) “any structure, including mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-proрelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.” §§ 39-14-401(1)(A), (B) (emphasis added).
Id. at 404. Meanwhile, Arkansas “prohibits burglary of a ‘residential occupiable structure.‘” Id. (quoting
perpetrator and an occupant of the burgled location. Id. The Court explained that “[a]n offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging runs a similar or greater risk of violent confrontation.” Id.
Stitt requires the conclusion that § 2909.01‘s “overnight accommodation” language does not render
B.
The Supreme Court‘s holding in Stitt does not end the inquiry here, however, because
We must look to state law to ascertain the meaning of these terms. “[S]tate courts are the final authority on the meaning of state law.” United States v. Vite-Espinoza, 342 F.3d 462, 470 (6th Cir. 2003) (citation omitted). In interpreting an Ohio statute, we first examine its language to determine legislative intent. Provident Bank v. Wood, 304 N.E.2d 378, 381 (Ohio 1973). “[C]ourts must give the words used in statutes their plain and ordinary meaning, unless legislative intent indicates otherwise.” Coventry Towers, Inc. v. City of Strongsville, 480 N.E.2d 412, 414 (Ohio 1985) (citation omitted). Also, “our attention should be directed beyond single phrases, and we should consider, in proper context, all words used by the General Assembly in drafting [the relevant statute] with a view to its place in the overall statutory scheme.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 773 N.E.2d 536, 541 (Ohio 2002).
1.
“[H]abitation” “is not a word with special or technical meaning” and it “is not defined in the Revised Code or by case law.” State v. Snyder, 947 N.E.2d 1281, 1284 (Ohio Ct. App. 2011). “When words in a statute are not defined, they are to be ‘construed according to the rules of grammar and common usage.‘” Id. (quoting
We can also find guidance from the statutes themselves on the meaning of “habitation”
The relationship between the words “dwelling” and “habitation” is a bit more difficult to figure out. In United States v. Lewis, the Third Circuit analyzed Ohio‘s Pre-Senate Bill 2 burglary statutes in the context of a residual clause analysis complicated by proсedural quirks. 330 F. App‘x 353, 357 (3d Cir. 2009). In that case, the court held that the defendant‘s conviction for simple burglary under
These definitions of habitation focus on a structure‘s status as a place where a person lives rather than that structure‘s specific physical attributes. The burglary statutes provide an exhaustive list of places that qualify as “occupied structures” (like watercraft and railroad cars) in § 2909.01, while narrowing the scope of occupied structures that are covered under aggravated burglary to “habitations” in
State cоurt precedent supports this interpretation. The Ohio Court of Appeals has confirmed that “the distinction between aggravated burglary and burglary . . . turns not on the character of the habitation, but rather upon the existence of one or more of the distinguishing elements set forth in paragraphs (A)(1), (A)(2) and (A)(3) of R.C. 2911.11,” including “the likely presence at the time of persons in the building.” State v. Durham, 360 N.E.2d 743, 749 (Ohio Ct. App. 1976). The court has also equated the “permanent or temporary habitation” language with the word “home.” State v. Veal, 355 N.E.2d 521, 524 (Ohio Ct. App. 1975). Because the term “habitation” focuses on use, not physical attributes, it does not limit the scope of
2.
Section 2911.11(A)(3) also requires that, at the time of the burglary, a person be either “present” or “likely to be present.” This constitutes a separate requirement from the “habitation” language, as “[a] structure can be one that was occupied as a permanent or temporary habitation without being one under R.C. 2909.01(D), where at the time anyone is present or
While this is a broad interpretation, Ohio courts have made clear that the presence requirement in
periods of time, a person may still be ‘likely to be present’ under the statute if the occupant gave a key to a neighbor or to someone else and asked them to check on the property.”); State v. Tippie, No. 91 CA 1511, 1993 WL 148775, at *8 (Ohio Ct. App. May 3, 1993).
The biggest difference between the habitation and presence requirements is that “presence” is even more fleeting than use as a “habitation.” The former can change depending on the time of day. Thus, the “present or likely to be present” language in the statute providеs a concrete limitation separate from the limited scope of the word “habitation” when compared to “occupied structure.”
C.
We now turn to the framework for determining whether
1.
Three Supreme Court decisions provide us with two helpful pieces of guidance. First, we know that a burglary statute is broader than generic burglary if it (1) covers a multitude of location types, including vehicles, and (2) does not limit its coverage to even remotely residential uses. See Stitt, 139 S. Ct. at 407; Mathis, 136 S. Ct. at 2250; Taylor, 495 U.S. at 599.7 Second, we know that a burglary
discussed above, state law makes clear that both of these attributes are highly fact-specific and dependent upon actual use and presence of a person, unlike the static attributes of physical adaptation and customary use that Stitt considered.
Examining the rationale behind the distinctions made by the Suprеme Court provides a bit more guidance. Stitt explained that by “restricting [their] coverage . . . to vehicles or structures customarily used or adapted for overnight accommodation,” the Tennessee and Arkansas statutes “more clearly focus upon circumstances where burglary is likely to present a serious risk of violence” compared to the statutes at issue in Taylor and Mathis. Stitt, 139 S. Ct. at 407. Section 2911.11(A)(3) does the same thing, but by different—and arguably more direct—means. The district court explained that
It would be nonsensical to conclude that the most traditional and well-understood form of burglary—entry into an occupied location with the intent to commit a crime inside—was now excluded merely because the occupied location was not a building. Indeed, in Taylor, the Supreme Court repeatedly pointed out Congress‘s intent to punish repeat burglary offenders because of burglary‘s “inherent potential for harm to persons,” when a dwelling was invaded. The Court‘s use of “building or other structure” does not exclude burglary of a dwelling or occupied location from the generic definition.
Greer, 2016 WL 7387103, at *3 (footnotes omitted). By focusing on “circumstancеs where burglary is likely to present a serious risk of violence,” this reasoning is consistent with the Supreme Court‘s discussion of generic burglary in Stitt. 139 S. Ct. at 407. Nothing heightens the risk of violence more than the actual presence of persons inside the burgled structure. By extending only to habitations “in which at the time any person is present or likely to be present,”
This interpretation undeniably puts the expectations of the would-be burglar on the back burner. It is reasonable to assume that Bob Seger‘s tour bus is likely to have people inside it in the dead of night, and thаt a Ford Mustang is not. It is similarly reasonable to make the same assumptions with regard to a single-family house and a Pizza Hut, respectively. But it also makes sense to prioritize the actual risk of violence inherent in a burglary over the perpetrator‘s expected risk of violence. For one thing, real risk is more important than expected risk. For another, the
2.
Our analysis does not end there, however. Recall that our understanding of generic burglary is anchored by the ways in which the term was “used in the criminal codes of most Statеs” at the time the ACCA was passed. Taylor, 495 U.S. at 598; see Stitt, 139 S. Ct. at 406. To answer the question presented in Stitt, the Supreme Court examined “burglary statutes from 1986 or earlier that covered either vehicles adapted or customarily used for overnight accommodation or a broader class of vehicles.” Stitt, 139 S. Ct. at 406. At the end of the opinion, the Court included an appendix listing thirty-one such state statutes. Id. at 408; see also Quarles v. United States, 139 S. Ct. 1872, 1878 (2019).
We have engaged in a similar inquiry regarding the scope of state burglary statutes as they existed at the time the ACCA was passed.8 After examining these statutes, we conclude that at least thirty-one of them are broader than or substantially similar in scope to
(covering “any... closed vehicle”);
Five statutes require a bit more discussion. They contain broader language than the provisions at issue in Stitt, and
D.
We hold that the Pre-Senate Bill 2 version of
V.
For the reasons discussed above, we affirm the district court‘s judgment.