UNITED STATES OF AMERICA v. DAVID EARL BROWN
No. 18-5356
United States Court of Appeals, Sixth Circuit
April 24, 2020
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0126p.06
UNITED STATES OF AMERICA, Plaintiff-Appellant, v. DAVID EARL BROWN, Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga.
Nos. 1:06-cr-00078-1; 1:12-cv-00362—Harry S. Mattice, Jr., District Judge.
Decided and Filed: April 24, 2020
Before: SUHRHEINRICH, BUSH, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Debra A. Breneman, Luke A. McLaurin, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellant. Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellee.
MURPHY, Circuit Judge. The Armed Career Criminal Act increases the sentence for felons who possess firearms from a 10-year maximum to a 15-year minimum if the defendant has three prior convictions that qualify as “violent felonies.”
I
The Armed Career Criminal Act defines the phrase “violent felony” to mean, among other things, “burglary.”
These ground rules have been easier to articulate than apply. Our own experience with Tennessee‘s aggravated-burglary statute proves the point. Tennessee law defines “aggravated burglary” as “burglary of a habitation.”
In 2007 we held that an aggravated-burglary conviction under Tennessee law categorically counts as a burglary under the Supreme Court‘s generic definition and so falls within the Armed Career Criminal Act. United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). In 2017, after further guidance from the Supreme Court on its categorical approach, see Mathis, 136 S. Ct. at 2247–48; Descamps v. United States, 570 U.S. 254, 260–65 (2013), we reversed course. Our en banc court held that Nance had “misapplied the categorical approach” and that “a violation of Tennessee‘s aggravated-burglary statute is not categorically a violent felony.” United States v. Stitt, 860 F.3d 854, 861 (6th Cir. 2017) (en banc). That state of things did not last long. In December 2018 the Supreme Court unanimously reversed our en banc decision. Stitt, 139 S. Ct. at 403–04. We have since decided that ”Nance‘s holding” that a Tennessee aggravated-burglary conviction categorically qualifies as a violent felony under the Armed Career Criminal Act “is once again the law of this circuit.” Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019).
The uncertainty in our caselaw has translated into uncertainty in people‘s lives. David Brown‘s is unfortunately one of them. When a jury first convicted him in 2008 of being a felon in possession of a firearm, Nance was good law. The district court sentenced Brown to a 180-month term as an armed career criminal because of his three Tennessee aggravated-burglary convictions. Brown, 443 F. App‘x at 959–60. After our Stitt decision overruled Nance, however, the parties agreed in collateral proceedings under
II
Because Nance is “once again the law of this circuit,” we normally would vacate the district court‘s order granting relief under
Brown, however, offers four reasons why we should nevertheless affirm the district court‘s order granting him
A
Brown starts by suggesting that the United States forfeited its argument because it presented the argument in a perfunctory manner in the district court. We disagree. The government properly conceded that our en banc decision in Stitt foreclosed any argument that Brown‘s aggravated-burglary convictions were violent felonies, but preserved that issue for future review should the Supreme Court see things differently. At sentencing the district court itself recognized that the United States had “preserved [its] rights on Stitt.” Cf. United States v. Vonner, 516 F.3d 382, 385, 391 (6th Cir. 2008) (en banc).
B
Turning to the merits, Brown argues that Tennessee aggravated burglary cannot qualify as a “burglary” under the Armed Career Criminal Act because, even after Stitt, Tennessee‘s version of burglary is still broader than the Supreme Court‘s generic version. That is so, Brown contends, because Tennessee‘s definition of “enter” for its burglary statute covers conduct that would qualify only as attempted burglary at common law. But, as Brown candidly concedes, we rejected this argument in Brumbach. 929 F.3d at 795. We did so because “a panel of this court cannot overrule Nance.” Id. (citing Salmi v. Sec‘y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)). We have also repeatedly rejected the argument since Brumbach. See, e.g., United States v. Burrus, 2020 WL 1862308, at *2 (6th Cir. Apr. 14, 2020); White, 2020 WL 773056, at *2. As in these other cases,
Brown‘s argument hinges on a subtle common-law distinction. The common law defined burglary narrowly and required more elements than most modern burglary statutes: “At common law, burglary was confined to unlawful breaking and entering a dwelling at night with the intent to commit a felony.” Quarles v. United States, 139 S. Ct. 1872, 1877 (2019). The common law nevertheless defined the “entry” element of this narrow crime broadly: “As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand is sufficient.” 4 William Blackstone, Commentaries on the Law of England 227 (1770).
Despite the breadth of a common-law “entry,” some authorities eventually distinguished the entry of a body part (a foot or finger) from the entry of an instrument (a hook or firearm). “[I]f any part of the body be within the house, hand or foot; this at common law [was] sufficient[.]” 2 Edward H. East, Pleas of the Crown 490 (1806). A person thus “entered” a home merely by reaching an arm into it, whether that reach was designed to steal money or unlock a door. See Rollin M. Perkins, Criminal Law 155–56 (1957); see also Rex v. Perkes, 171 Eng. Rep. 1204, 1204 (1824). If only an instrument entered a home, by contrast, whether that entry sufficed depended on the reason for the entry. If a person used the instrument to commit the intended felony (for example, the person stuck a hook into the home to grab jewelry or a rifle into it to commit a robbery), both Edward Coke and William Blackstone treated the entry of that instrument alone as a burglary. Blackstone, supra, at 227; 3 Edward Coke, Institutes of the Laws of England 64 (1648). But later cases held that if a person used an instrument merely to undertake the “breaking” and did not also use it to commit the additional felony (for example, the person used a drill bit only to drill through a door), the entry of that instrument alone did not suffice. See Rex v. Hughes, 168 Eng. Rep. 305, 305 (1785); 1 William Hawkins, Pleas of the Crown 162 (6th ed. 1788).
Brown asks us to incorporate this “entry-by-instrument” distinction into the Armed Career Criminal Act‘s generic definition of burglary, which covers the unlawful “entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599 (emphasis added). He adds that Tennessee law defines “enter” to include not just the “[i]ntrusion of any part of the body” but also the “[i]ntrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise.”
We do not believe the Supreme Court would adopt Brown‘s view of generic “entry,” so we need not decide whether he correctly interprets Tennessee law. We begin
For one thing, while Taylor recognized that the Act covered common-law burglary, it refused to read the Act as limited to the common-law rules. Taylor, 495 U.S. at 593–96. When Congress enacted the Armed Career Criminal Act in 1986, “the contemporary understanding of ‘burglary’ ha[d] diverged a long way from its common-law roots.” Id. at 593. And the “arcane distinctions embedded in the common-law definition have little relevance to modern law enforcement concerns.” Id. Taylor noted that Congress included burglary in the Act because it “viewed burglary as an inherently dangerous crime[.]” Stitt, 139 S. Ct. at 406 (citing Taylor, 495 U.S. at 588). A burglary “creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.” Quarles, 139 S. Ct. at 1879 (quoting Taylor, 495 U.S. at 588).
Brown‘s entry-by-instrument distinction represents perhaps the prototypical “arcane distinction” that Taylor would disavow. That distinction has no relevance to Congress‘s underlying reason for passing the Act. See id. Which burglar creates the greater risk of a violent encounter with a startled homeowner? The one who reaches a finger between a window and an inner shutter before fleeing (which would qualify as an entry under Brown‘s common-law rule), cf. Davis, 168 Eng. Rep. at 917–18, or the one who violently chops at a door with an axe that intrudes into the home (which would not qualify under his rule)? Cf. Taylor, 495 U.S. at 594.
For another thing, we must interpret the word “burglary” in the Armed Career Criminal Act in light of its statutory context—as a universal term governing the entire country. When Taylor proposed its generic burglary definition, it conceded that the “exact formulations” of the generic elements that it identified “var[ied]” from state to state. 495 U.S. at 598. We think the Court meant for its definition to be capacious enough to cover the states’ varied formulations of those elements. Cf. Quarles, 139 S. Ct. at 1879. As the Court has said for another provision of the Act, “[w]here, as here, the applicability of a federal criminal statute requires a state conviction, [the Court has] repeatedly declined to construe the statute in a way that would render it inapplicable in many States.” Stokeling, 139 S. Ct. at 552. To be sure, Taylor did not give states carte blanche to redefine the crime of “burglary.” When disavowing such an anything-goes approach, Taylor highlighted how a California law defined burglary “so broadly” as to cover even “shoplifting”
Here too, Brown‘s reading would mean that Congress immediately excluded several state burglary statutes from the Act‘s reach. We cannot know the precise number of states because many had no caselaw on this technical topic at the time of the statute‘s enactment. Cf. Quarles, 139 S. Ct. at 1878. Even so, several states had already departed from Brown‘s entry-by-instrument distinction by allowing any entry of an instrument to satisfy the state burglary law‘s “entry” element. Some state courts departed from Brown‘s distinction by broadly interpreting the word “entry.” A New Mexico court reasoned that “[b]urglary is an offense against the security of the building” and that this “security is breached by the penetration of an instrument into the building” no matter its purpose. State v. Tixier, 551 P.2d 987, 989 (N.M. Ct. App. 1976); see also Mullinnix v. State, 338 S.E.2d 752, 753 (Ga. Ct. App. 1985). Likewise, a California court found “no plausible reason for holding that an entry by instrument must be for the purpose of removing property.” People v. Osegueda, 210 Cal. Rptr. 182, 186 (Cal. App. Dep‘t Super. Ct. 1984); People v. Davis, 958 P.2d 1083, 1085–86 (Cal. 1998).
In other states, the legislatures changed their burglary laws by redefining “entry” broadly. In Texas, for example, the state courts had adopted Brown‘s entry-by-instrument distinction, but the legislature disapproved of that rule by defining entry to cover the intrusion of “any physical object connected with the body.”
Keep in mind, too, that Congress adopted a yes-or-no categorical approach for the Act. Its generic definition covers all convictions under a given state burglary statute or it covers none of them. See Taylor, 495 U.S. at 599–601. That fact has also led the Supreme Court to adopt a generic definition of burglary that gives the states greater flexibility in how they define their state burglary offenses. See Quarles, 139 S. Ct. at 1879. If we adopted Brown‘s view, for example, a perhaps once-in-a-century burglary conviction for entering only with an instrument
The Supreme Court‘s concern with giving states “breathing space” in defining their burglary offenses extends well beyond Brown‘s specific argument. Inventive lawyers can always imagine hypothetical convictions under which a state statute would categorically fall outside the Act because it does not comport with some nuanced common-law rule. Cf. Moncrieffe v. Holder, 569 U.S. 184, 205–06 (2013). Consider, for example, that Blackstone defined an entry as sufficient for burglary if the entry was “with an instrument held in the hand” (like a firearm reaching through a window). Blackstone, supra, at 227 (emphasis added). Should a bullet shot from outside a home qualify as an entry even though the bullet is not in the “hand” when it enters? Matthew Hale apparently had his doubts. See Perkins, supra, at 156 n.62. If Hale were right, should this fact exclude all statutes that count the bullet (or another object thrown into a home) as an entry? See, e.g., State v. Decker, 365 P.3d 954, 958 (Ariz. Ct. App. 2016); Commonwealth v. Cotto, 752 N.E.2d 768, 771–72 (Mass. Ct. App. 2001); State v. Williams, 873 P.2d 471, 473–74 (Or. Ct. App. 1994).
Our continuing experience with Tennessee‘s burglary statute also shows why the Supreme Court would give states leeway in how they define burglary. We have repeatedly confronted different nuanced arguments for why that statute should categorically fall outside the Supreme Court‘s generic definition. Our en banc court initially held that no conviction under this statute could qualify as a burglary under the Act because the Tennessee statute covered an entry into a vehicle adopted for overnight accommodation, whereas the Act‘s generic definition of burglary required an entry into a building. See United States v. Stitt, 860 F.3d 854, 857–59 (6th Cir. 2017) (en banc). Immediately after the Supreme Court rejected that narrow reading of generic burglary, see Stitt, 139 S. Ct. at 403–04, Victor Stitt argued that the Tennessee statute was still too broad because its requirement that an entry be “without the effective consent of the owner” covered passive acts of deception, whereas the Act‘s generic definition of burglary required an affirmative act equivalent to a “breaking.” And once we rejected that argument, see United States v. Stitt, 780 F. App‘x 295, 298–301 (6th Cir. 2019), we are now told again that the statute is categorically overbroad (again disqualifying all convictions) because it defines “entry” too broadly.
Our experience with these types of continuing nuanced arguments has not been unique. The en banc Fifth Circuit held that Texas‘s burglary statute was categorically overbroad because it permitted a conviction when the intent to commit the crime came after the illegal entry or the decision to illegally remain. See United States v. Herrold, 883 F.3d 517, 531–36 (5th Cir. 2018) (en banc), vacated by 139 S. Ct. 2712 (2019). After the Supreme Court rejected that view, see Quarles, 139 S. Ct. at 1875, Michael Herrold made the argument that the Texas statute was still overbroad because it covered passive acts of entry. The Fifth Circuit rejected that argument too. See United States v. Herrold, 941 F.3d 173, 180–81 (5th Cir. 2019) (en banc). And it is safe to say that the Fifth Circuit will confront Brown‘s entry argument soon, since Texas also defines “entry” broadly. See
All of this said, we concede that this case is different from the Supreme Court‘s two most recent decisions on this topic—Quarles and Stitt—in one important respect. In both cases, the Court said that most of the state decisions at the time of the Act‘s passage had incorporated into their burglary statutes the legal rule that the Court incorporated into the Act‘s generic burglary definition. See Quarles, 139 S. Ct. at 1878; Stitt, 139 S. Ct. at 406. The same cannot be said in this case. One nearly contemporaneous source suggested that the “majority of jurisdictions” that had examined this question had retained the narrower common-law rule and limited an “entry by instrument” “to the situation where the instrument is used to remove property from the premises or injure or threaten an occupant.” State v. Ison, 744 P.2d 416, 419 (Alaska Ct. App. 1987); see Foster v. State, 220 So. 2d 406, 407 (Fla. Dist. Ct. App. 1969); People v. Davis, 279 N.E.2d 179, 181 (Ill. Ct. App. 1972); State v. Liberty, 280 A.2d 805, 808 (Me. 1971); Commonwealth v. Burke, 467 N.E.2d 846, 849 (Mass. 1984); State v. Hodges, 575 S.W.2d 769, 772 (Mo. Ct. App. 1978); State v. O‘Leary, 107 A.2d 13, 15–16 (N.J. 1954); People v. Tragni, 449 N.Y.S.2d 923, 927–28 (N.Y. Sup. Ct. 1982); see also
See, e.g., Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 8.13(b), at 467–68 (1986).
This fact does not change our minds. As we explained, other states had adopted the broader “minority” position on entries by instrument at the time of the Act‘s passage. Ison, 744 P.2d at 419. Congress would not have rendered the Act‘s burglary provision “ineffectual” in these states (and others that would later adopt their view). Castleman, 572 U.S. at 167. The other factors relied on by Stitt and Quarles also fully apply in this case, including “Congress’ recognition of the dangers of burglary[] and Congress’ stated objective of imposing increased punishment on armed career criminals who had committed prior burglaries.” Quarles, 139 S. Ct. at 1879.
The minority view also diverged only subtly from the majority view; it did not completely redefine the crime of “burglary.” Cf. Taylor, 495 U.S. at 591. All courts agreed that an “entry” did not require much. They held that “entry by instrument” could qualify as burglary when a burglar used the instrument to commit the intended felony, see Ison, 744 P.2d at 419, and they held that the entry of any body part, such as a hand, sufficed, see Burke, 467 N.E.2d at 849. The minority view also departed from the traditional entry-by-instrument distinction for a reason relevant to the Supreme Court‘s generic definition of burglary. By ensuring that a burglar used an instrument for more than gaining access to a home, that traditional distinction kept burglary‘s “breaking” element separate from its “entry” element. See Hughes, 168 Eng. Rep. at 305–06; see, e.g., Burke, 467 N.E.2d at 847–50; O‘Leary, 107 A.2d at 15–16; Crawford, 80 N.W. at 194–95. Courts that disavowed this distinction did so partially because they had done away with any separate “breaking” element. See Tixier, 551 P.2d at 989. By the time of the Act‘s passage, most states had also done away with that element. See Taylor, 495 U.S. at 593. The Supreme Court thus refused to incorporate a “breaking” element into the Act‘s generic definition, id. at 598, and courts need not worry about keeping it distinct from the generic definition‘s “entry” element.
In sum, if several state burglary statutes had modestly departed from a common-law rule of burglary when Congress passed the Armed Career Criminal Act, courts should interpret the Act‘s generic definition of burglary to cover those state statutes. And because the broader view of “entry by instrument” falls within this principle, the Act‘s generic definition should encompass that broader entry-by-instrument rule, not Brown‘s narrower one.
C
Brown next provides another reason why Tennessee aggravated burglary should not qualify as a “burglary” under the Armed Career Criminal Act. Generic burglary, Brown argues, requires a defendant to have an “intent to commit a crime” when the defendant unlawfully enters or remains in a building. See Taylor, 495 U.S. at 599. But Brown says that one of the ways in which a person can commit Tennessee burglary—“[e]nter[ing] a building and commit[ting] or attempt[ing] to commit a felony, theft or assault,”
As an initial matter, it is not clear under our precedent that we may rely on this new argument to conclude that all Tennessee aggravated-burglary convictions fall outside the Act. Our cases have “held, broadly, that ‘convictions under subsections (a)(1), (a)(2), and (a)(3)‘” of the Tennessee burglary statute “‘fit within the generic definition of burglary and are therefore violent felonies‘” for purposes of the Armed Career Criminal Act. Brumbach, 929 F.3d at 794 (quoting United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017)). And we have previously rejected other attempts to bring new arguments challenging those prior holdings. See id. at 795. If our cases prohibited Brian Brumbach from raising his new “entry” argument, those cases may well foreclose David Brown from raising his new “intent” argument.
Regardless, this argument fails for a case-specific reason that we highlighted on Brown‘s direct appeal. Brown, 443 F. App‘x at 959–60. Tennessee burglary convictions are not all the same, and Tennessee‘s burglary statute is divisible. It criminalizes four different offenses set out in subsections (a)(1), (a)(2), (a)(3), and (a)(4).
Brown thus was convicted of violating the (a)(1) version of Tennessee aggravated burglary. See United States v. Hibbit, 514 F. App‘x 594, 597–98 (6th Cir. 2013). That (a)(1) version contains the “intent” requirement that Brown
D
The Armed Career Criminal Act applies only if a defendant has three prior convictions for violent felonies that were “committed on occasions different from one another.”
Brown more narrowly argues that his state-court records do not show that his three burglaries happened on different occasions. The United States says that he procedurally defaulted this argument, but we find it easier to resolve Brown‘s claim on the merits. Cf. Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011). A petitioner bears the burden of proof in a
As Brown concedes, we may look to his state-court indictments to decide whether his burglaries were committed on different occasions. See United States v. King, 853 F.3d 267, 275–76 (6th Cir. 2017). In one indictment, Brown alone was charged with burglarizing Claude Suttles‘s residence in August 1991 and James Goins‘s residence in December 1991. That indictment indicates that Brown stole a VCR and TV from Goins. In a second indictment, Brown and another person were charged with burglarizing Teresa Chambless‘s residence on December 27, 1991. That indictment indicates that Brown and the other person stole a weed eater, lantern, and heaters from Chambless. The “terms of the charging document[s],” id. at 276 (citation omitted), thus show that the two December 1991 burglaries happened on different occasions: the burglaries were of different residences, the items stolen from those residences were different, and one burglary was committed with another person while the other was committed alone. See Hennessee, 932 F.3d at 444–45; United States v. Southers, 866 F.3d 364, 369–70 (6th Cir. 2017). Brown thus cannot meet
* * *
We grant Brown‘s motion to take judicial notice, vacate the district court‘s order granting him release, and remand with instructions to reinstate his original sentence.