UNITED STATES OF AMERICA, Plaintiff - Appellee, v. FRANK JOSEPH DODGE, Defendant - Appellant.
No. 18-4507
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
June 30, 2020
Submitted: March 24, 2020
PUBLISHED
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:15-cr-00293-FL-1)
Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.
G. Alan DuBois, Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
After Frank Dodge pleaded guilty to possession of a firearm by a felon, in violation of
While we recognize, as noted in more detail below, that Dodge makes an argument based on language from two recent Supreme Court decisions, we nonetheless are bound to follow our prior decision in United States v. Mungro, 754 F.3d 267, 272 (4th Cir. 2014), where we held that the North Carolina breaking and entering statute “sweeps no more broadly than the generic elements of burglary” and therefore its violation qualifies as an ACCA predicate conviction. Moreover, the Supreme Court language cited by Dodge focused on whether a State‘s inclusion of vehicles in the text of its definition of burglary made the statute broader than the generic definition of burglary, an issue not before us today. Consistent with that, we have continued to rely on Mungro as binding precedent in at least 17 published and unpublished opinions decided both before and after the Supreme Court issued its opinions. In some unpublished opinions, we have even rejected the very argument that Dodge makes here. Because our holding in Mungro has not been superseded, we affirm.
I
The presentence report prepared for Dodge‘s sentencing listed as part of his criminal history seven prior felony convictions for breaking and entering, in violation of
At his sentencing hearing, Dodge argued that his prior North Carolina breaking and entering convictions did not qualify as violent felony convictions for purposes of applying ACCA‘s sentencing enhancement because
While the district court acknowledged Dodge‘s objection, it stated that it was obligated to follow our precedent in Mungro. Accordingly, it accepted the presentence report‘s conclusion that Dodge was subject to ACCA‘s 15-year mandatory minimum sentence as an armed career criminal. Nonetheless, the government filed a motion for a downward departure, and the district court sentenced Dodge to 88 months’ imprisonment.
From the judgment entered on July 9, 2018, Dodge filed this appeal, challenging only the district court‘s application of ACCA in sentencing him.
II
In relevant part, ACCA provides that a person convicted of violating
To determine whether North Carolina breaking and entering under
The Supreme Court has defined the generic crime of burglary in ACCA as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime,” Taylor, 495 U.S. at 598, and therefore, we understand the elements of generic burglary as (1) an unlawful or unprivileged entry or presence in (2) a requisite location, meaning “a building or other structure,” (3) with the intent to commit a crime.
Similar to the generic federal crime, the North Carolina breaking and entering offense is committed when a person “[1] breaks or enters [2] any building [3] with intent to commit any felony or larceny therein.”
In Mungro, we compared the North Carolina breaking and entering statute with generic federal burglary and held that ”
Since deciding Mungro, we have cited it in two published opinions without qualification. See United States v. Mack, 855 F.3d 581, 586 n.2 (4th Cir. 2017) (citing Mungro for its substantive holding that an offense under
Dodge makes two arguments to avoid the Mungro line of cases. First, he correctly notes that the Mungro decision itself did not explicitly consider whether
As to Dodge‘s first argument, although Mungro did not explicitly consider
Dodge contends that the Supreme Court‘s decisions in Mathis and Stitt clarified the meaning of “building” for ACCA purposes and that clarification places Mungro in doubt. In Mathis — decided two years after Mungro — the Supreme Court addressed the “building” element of an Iowa burglary statute and reasoned that because it applied to burglary of “any building, structure, or land, water, or air vehicle,” 136 S. Ct. at 2250 (quoting
And in Stitt, the Court held that the burglary of a structure or vehicle qualified as generic burglary under ACCA if the state statute required that the vehicle be adapted or customarily used for overnight accommodation. 139 S. Ct. at 406–07. In so holding, the Court noted that generic burglary is a crime concerned with violent confrontations that may arise when people are present and reasoned 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. at 406. There is also explanatory language in Stitt suggesting, but not holding, that the locational element of generic burglary might not encompass structures intended for the storage of property rather than for occupancy:
In Taylor, for example, we referred to a Missouri breaking and entering statute that among other things criminalized breaking and entering “any boat or vessel, or railroad car.” Ibid. (citing Mo. Rev. Stat. § 560.070 (1969) ; emphasis added). We did say that that particular provision was beyond the scope of the federal Act. But the statute used the word “any“; it referred to ordinary boats and vessels often at sea (and railroad cars often filled with cargo, not people), nowhere restricting its coverage, as here, to vehicles or structures customarily used or adapted for overnight accommodation. The statutes before us, by using these latter words, more clearly focus upon circumstances where burglary is likely to present a serious risk of violence.In Mathis, we considered an Iowa statute that covered “any building, structure, . . . land, water or air vehicle, or similar place adapted for overnight accommodation of persons or used for the storage or safekeeping of anything of value.”
Iowa Code § 702.12 (2013) . Courts have construed that statute to cover ordinary vehicles because they can be used for storage or safekeeping. See State v. Buss, 325 N.W.2d 384 (Iowa 1982); Weaver v. Iowa, 949 F.2d 1049 (9th Cir. 1991). That is presumably why, as we wrote in our opinion, “all parties agree[d]” that Iowa‘s burglary statute “covers more conduct than generic burglary does.” Mathis, 136 S. Ct. at 2250.
Id. at 407 (cleaned up) (second and third emphases added).
Thus, Dodge argues that because no published decision of this court has explicitly resolved the question of whether the “building” element of North Carolina‘s breaking and entering statute is overbroad, the language from Mathis and Stitt indicates that it very well may be.
Nonetheless, as Dodge seems to acknowledge, the fact remains that neither Mathis nor Stitt is a superseding contrary decision of the Supreme Court overruling Mungro‘s explicit holding that North Carolina breaking and entering qualifies as a violent felony for ACCA purposes. The relevant discussion in these two cases focused primarily on whether there was a distinction between “vehicles,” even if used for temporary accommodation, and “buildings.” See Mathis, 136 S. Ct. at 2250; Stitt, 139 S. Ct. at 406–07. And while language in Stitt implies that generic federal burglary is concerned with violent confrontations that might arise when people are present, whether in buildings, structures, or vehicles, its holding was limited to the vehicle context. Moreover, both Mathis and Stitt relied on Taylor‘s definition of generic burglary, as did we in Mungro, and neither purported to articulate a new test for assessing the locational element of that definition.
Thus, we are faced with prior Fourth Circuit precedent that could be read as being in tension with intervening Supreme Court reasoning but no directly applicable Supreme Court holding. In a similar situation, we have determined that we could not overturn our prior precedent where our cases post-dating the Supreme Court developments continued to rely on prior panel decisions as binding. See United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th Cir. 2003) (reasoning that while Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), may have “alter[ed] the legal landscape” with respect to the admissibility of certain evidence, this court‘s subsequent reliance on pre-Daubert polygraph evidence decisions established that those decisions continued to carry precedential force and thus could not be overruled by a three-judge panel). Just as in Prince-Oyibo, we have
At bottom, we conclude that Mathis and Stitt do not overrule our prior holding in Mungro that a conviction under
The judgment of the district court is accordingly
AFFIRMED.