UNITED STATES OF AMERICA, Plаintiff - Appellee v. MICHAEL HERROLD, Defendant - Appellant
No. 14-11317
United States Court of Appeals, Fifth Circuit
February 20, 2018
United States Court of Appeals Fifth Circuit FILED February 20, 2018 Lyle W. Cayce Clerk
Appeal from the United States District Court for the Northern District of Texas
Before STEWART, Chief Judge, and JOLLY, HIGGINBOTHAM, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, and COSTA, Circuit Judges.*
Three decades ago, Congress set the courts upon a new course for the sentencing of federal defendants, moving away from a long-in-place system that gave wide discretion to federal judges to impose sentences from nigh no prison time to effective life sentences. But this discretion was not so wide in practice as in appearance—the judge‘s sentence gave way when the prisoner left the court for prison. The total time served by the prisoner was on his arrival determined in the main by a parole commission. The commission determined release dates, and in a rough and crude way—relative to the work of the Sentencing Commission—anticipated the system now in place by using a scoring system that looked in part to a defendant‘s criminal history. In response to charges from the Left of disparate and from the Right of anemic sentencing, and thus with the support of both ends of the political spectrum, Congress shifted the focus to a defendant‘s individual circumstances on the one hand and mandatory minimum sentences tailored to particular crimes on the other. With much work from its newly erected Sentencing Commission, nourished by reflection, essential empirical study, and judges tasked with applying its regulations, this reform effort appears to now be understood by bench and bar, enjoying a measure of well-earned credibility. Yet its relatively calibrated system
In this case, we consider questions posed by the use of Texas‘s burglary statute,
On November 5, 2012, Dallas police officers stopped Michael Herrold for failing to signal a right turn. An officer approaching his car saw a handgun on the floor and arrested him. Herrold pled guilty to possession of a firearm by a former felon.1 This latest conviction came on top of a series of past felonies, including three convictions for Texas offenses that his PSR listed as making him eligible for the sentence enhancement imposed by the Armed Career Criminal Act (“ACCA“)2: (1) unlawful possession of LSD with intent to distribute; (2) burglary of a building; and (3) burglary of a habitation. Herrold argued that none of these offenses qualified as ACCA-predicate offenses, such that a sentence enhancement was therefore improper. The trial judge disagreed; he adopted the recommendation of the PSR and sentenced Herrold to 211 months in prison, including the ACCA enhancement. The judge observed, however, that Herrold had made “forceful arguments” that the enhancement should not apply, and he requested guidance from our court on the question. Without the enhancement, Herrold faces a statutory maximum of ten years3—the enhancement added at least 91 months to his sentence and subjected him to a statutory minimum of fifteen years.4
We considеred Herrold‘s arguments on direct appeal and affirmed his sentence on the basis of circuit precedent.5 The Supreme Court vacated our judgment and remanded for renewed consideration in light of Mathis v. United States, 136 S. Ct. 2243 (2016).6 On remand, Herrold argued that Mathis forecloses the possibility that his two Texas burglary convictions can serve as ACCA predicates.7 We affirmed his sentence once again, this time on the basis of an earlier post-Mathis decision, United States v. Uribe, 838 F.3d 667 (5th Cir. 2016).8 We now reconsider this argument en banc and, in doing so, revisit Uribe and its progeny as well.
I.
The ACCA enhances the sentences of defendants with at least three previous convictions for certain crimes. Not all convictions trigger the enhancement—the ACCA specifies that a previous conviction must be for a “violent felony” or a “serious drug offense” for it to count as an ACCA predicate.9 “Violent felony,” the sole category under which Herrold‘s burglary convictions could plausibly fall, is defined in part by reference to other crimes, and the ACCA tells us that “burglary, arson, [and] extortion” fit the bill.10
That said, “burglary” is confined to a federal definition of “generic burglary” unbound by a state‘s decision to label criminal conduct by that term.11 The fact that two of Herrold‘s convictions arose under a provision of Texas‘s burglary statute,
II.
Texas‘s burglary statute,
A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.12
As is evident, Texаs‘s burglary statute is alternatively phrased, comprised of a list of several disjunctive subsections. Statutes taking this form pose a preliminary question—and its answer switches us to the appropriate analytical track. We must determine whether the statute sets forth alternative means of committing a single substantive crime, or separate elements, effectively defining distinct offenses.13 We refer to the former sort of statutes as “indivisible,” and we call the latter “divisible.”14 If a statute describes alternative means of committing one offense (i.e., if a statute is indivisible), we compare the whole thing to its federal generic counterpart and determine whether any part falls outside the federal template. In other words, we perform
After the first time we upheld Herrold‘s sentence, Mathis v. United States provided a more fine-grained trace between statutory means and elements.17 In doing so, it also offered a typology of the authorities that federal courts may look to in determining whether a statute is divisible or indivisible.
Our first task is to determine whether state law sources resolve the question.18 If state court decisions dictate that a jury need not unanimously agree on the applicable alternative of the statute, the statute is indivisible and its alternative terms specify different means of committing a single offense.19 And if state courts have decided a jury must unanimously agree on the alternative, the alternatives describe separate offenses comprised of distinct elements.20 We may also look to the text of the statute. If the statute lists different punishments for each of its alternatives, they must be elements of distinct offenses.21 And the statute may also simply tell us “which things must be charged (and so are elements) and which need not be (and so are means).”22
If one of these authorities resolves the question, our inquiry ends. If state law fails to answer the question, we may look at the record of the defendant‘s prior convictions “for the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.”23 The record is relevant because if all statutory alternatives are charged in a single count of an indictment or lumped together in a jury instruction, this is evidence “that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.”24 And if an indictment or jury instruction contains only one of the statute‘s alternatives, this is evidence that the statute lists elements and is therefore divisible.25
Should our dual forays into state law and the record leave the question of divisibility inconclusive, the tie goes to the defendant—because the ACCA demands certainty that a defendant indeed committed a generic offense,26 any indeterminacy on the question means the statute is indivisible.27
A.
Conducting this inquiry leads us to the conclusion that
In Martinez v. State,30 the Texas Court of Appeals squarely faced the question of whether jury instructions charging
The Uribe court relied on different Texas state court decisions to reach the contrary conclusion, believing that Day v. State34 and Devaughn v. State35 compelled
In Day, the Texas Court of Criminal Appeals described “the elements of the three types of burglary” outlined by
Similarly, in Devaughn, the Court of Criminal Appeals occasionally used the word “element” in describing the provisions of
choice to use the word “element” in this context is of uncertain legal significance; Devaughn ultimately concerns the right of criminal defendants to notice of charges guaranteed under the Texas constitution. The analysis of that right does not turn on a distinction between elements and means.42 Once more—and likely for this very reason—the Devaughn court also chose to use language describing the different provisions of
has articulated some principles about the nature of a statute to answer one question, and a series of state lower court decisions has drawn on those principles to answer a different question. Put another way, the lower courts have fleshed out Day and Devaughn and told us what they mean in this precise context: jury unanimity, the issue that Mathis deems dispositive, is not required between
Besides Day and Devaughn, the jury unanimity cases draw on the reasoning of another kindred case: the Supreme Court‘s opinion in Schad v. Arizona.45 Schad recognized and upheld the Arizona Supreme Court‘s treatment of premeditated murder and felony murder as different means of committing a single offense, such that jury unanimity between those alternatives is not required.46 And the Mathis Court cited Schad as an appropriate example of a federal court looking to state law on jury unanimity for answers on the question of divisibility.47 That the Texas courts also cite Schad indicates that they saw themselves performing the same role as the Arizona Supreme Court and makes their relevance to our inquiry all the more unmistakable. Under Mathis, they must pass muster.
The government argues that the Texas jury unanimity cases are nevertheless wrongly decided, and that we should disregard them. Small wonder—the government conceded at oral argument that if Martinez and its ilk accurately describe Texas burglary law, then its position would be “dead in the water.” But Mathis does not contemplate federal substantive review of state decisions on jury unanimity for correctness on the merits; it directly
informs us that where there is controlling case law, our inquiry is at an end.48 Layering
These cases all present something of a cautionary tale. Courts may speak of “elements” and “means” in myriad ways; to take just the first word, the cases cited to us contain references to the “element[s] in the State‘s case,”50 the “main element[s] of burglary,”51 and the “same elements’ test” of Blockburger v. United States,52 among other variations on that theme. No doubt recognizing these words’ context-shifting nature,53 the Mathis Court did not send us on a search for state cases that describe a disjunctively phrased statute using either the word “elements” or “means.”54 It demanded certainty. It demanded that we find “ruling[s] of th[e] kind” it relied on—rulings that may “definitively answer[] the question” of divisibility.55 Those, it held, are decisions considering whether jury unanimity is required between statutory alternatives. There is Texas case law concerning the need for jury unanimity between
B.
State case law on jury unanimity notwithstanding, the government brings other arguments that the two statutory alternatives should be treated as divisible. These arguments are foreclosed by Mathis.
First, the government makes several statutory claims about the nature and structure of
The government casts its gaze farther afield, pointing to other statutory features unmentioned by the Mathis Court but that it nonetheless urges suggest divisibility. It would have us read significance into the facts that, for instance, “[e]ach subsection [of
to commit’ the offense enumerated in that subsection.” The extent to which features like this bear on the divisibility question is unclear.58 The first point involves a legislative drafting decision of uncertain significance in this context, while the second verges on circularity: disjunctively phrased offenses, by their very nature, involve different kinds of conduct or mens rea requirements.59 Disjunction means difference. The government may mean that the relevant subsections of
The arguments along these lines sum to the assertion that the Texas burglary statute does not fit the government‘s conception of what an indivisible statute looks like. But the Court has given us a test to apply, and that test is not a Rorschach. We are bound to examine how a state treats its own statute using the materials that the Court said speak with sufficient certainty on the matter. For this reason, we decline to hold that these structural statutory features are sufficient to resolve the question of divisibility when they point in the opposite direction of sources that the Mathis Court did say were relevant—
state decisions on the subject of jury unanimity.61
And for good reason. As an initial matter, different states apply their own tests for enforcing their own double jeopardy rules, and therefore simply tracking double jeopardy cases would mean using a different test for divisibility based on the rules of the underlying state.62 None of the sources that the Mathis Court actually pointed to have this flickering quality.63 Further, the Fourth Circuit rejected basically the same double jeopardy
argument in United States v. Cabrera-Umanzor, in the course of holding that a Maryland child abuse statute is indivisible.64 It explained that statutory distinctions made by state courts in a double jeopardy analysis do not automatically inform the divisibility analysis.65 The Mathis Court, in turn, cited Cabrera-Umanzor as an example of a federal court properly performing the divisibility inquiry.66
There is another, more conceptual reason why the double jeopardy cases provided by the government shed little light on divisibility. Texas state courts have adopted the Blockburger test for double jeopardy, which asks courts to determine the facts that must be proven under different statutory alternatives.67 When statutory
differences exist, but what legal effect accompanies those factual differences.70
In light of Texas case law, we hold that
III.
Before considering whether
This decision rested on the clear premise that different portions of state definitions would not fall within the generic definition‘s scope, a reality that the Taylor Court acknowledged. But the Taylor Court was not animated by the purpose of maximizing the number of states that fall within or without the ACCA‘s ambit.74 It was rather engaged in implementing Congress‘s intent from the sources it deemed appropriate, and with a burglary definition in service of predictability in sentencing. The idea was to ensure that similar conduct was similarly treated in the enhancement of federal sentences.
The Taylor Court‘s approach was cautious; even after choosing to deploy a generic definition, it could have outlined that definition more broadly. But to do so would increase the risk of sweeping in criminal conduct of disparate character. If the federal definition were slackened too much, a defendant who broke into a building to escape the cold and only once inside decided to pilfer a jacket could be subject to the same enhancement as a defendant who planned an elaborate theft of that same building.75 Or a defendant who broke into the unoccupied cab portion of a pickup truck could be subject to the same enhancement as a defendant who broke into
Nor does the Taylor Court‘s approach disserve states that opt to extend their burglary definitions broadly. States remain free to define and punish burglary however they like—they can prescribe sentences for their nongeneric burglary statutes that compensate for the ACCA‘s inapplicability. They can define different offense degrees or tinker with their statutes’ divisibility structures to carve out suitably generic forms.78 Or states can ignore the existence of the ACCA, mindful that it is a federal statute that memorialized Congress‘s preferred definition of burglary at the time it was enacted. However states ultimately choose to respond, clarity in defining the reach of the ACCA‘s
generic definition enables legislatures to accurately consider federal policy in deciding how to shape their own.79
In the hands of the fifty states with their myriad local concerns, the scope of burglary at the state level was a dynamic target when the ACCA was passed and it continues to be one today.80 It is for Congress, however, to alter the federal definition if and when it deems appropriate.81 These principles inform the question of whether a particular state provision qualifies as generic burglary.
IV.
Because
A.
Subsection 30.02(a)(3) of Texas‘s burglary statute proscribes entry into a building or habitation followed by commission or attempted commission of a felony, theft, or assault.82 This formulation rendеrs the provision broader than generic burglary, and it does so for lack of a sufficiently tailored intent requirement. The ACCA‘s definition of generic burglary requires “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”83 Both the Supreme Court‘s language and its sources suggest that this constitutes a contemporaneity requirement: to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure.84 Subsection 30.02(a)(3) contains no textual requirement that a defendant‘s intent to commit a crime contemporaneously accompany a defendant‘s unauthorized entry. And we have repeatedly held that because of this fact, it is broader than the ACCA‘s generic definition.85
The government disagrees. Relying mostly on out-of-circuit precedent, it argues that despite the fact that
The breadth of the government‘s reading is clear. The Taylor Court spoke of “unlawful or unprivileged entry into, or remaining in” with the requisite intent as if they were alternative possible acts.89 Yet the net effect of the government‘s linguistic move puts entry almost entirely out of focus; because all entry is followed by its version of remaining in, and because the remaining in lasts until departure, almost every instance of entry would automatically involve remaining in. For this same reason—and in combination with the accompanying removal of a contemporaneity requirement—statutes that seem to speak only of unlawful entry counterintuitively correspond instead to generic remaining in.
The more natural way of reading the Supreme Court‘s reference to “remaining in” in its generic burglary definition—and the way we have chosen to read it in the past90—would retain the distinction between the two outlined categories of conduct. Under that reading, the “remaining in” language captures burglars who initially have a license to enter a particular location but who remain there once that license expires in order to commit a crime. Generic burglary would require these defendants to possess the intent to commit a crime while remaining in this narrower sense—that is, at the moment they exceed their license in order to commit a crime.91
In addition to ensuring that the two types of conduct function as true alternatives, this interpretation has the support of the sources that the Taylor Court relied on in crafting its generic burglary definition. After the Taylor Court articulated the elements of generic burglary, it directly cited only the then-current edition of the influential LaFave and Scott criminal law treatise. In that treatise, LaFave and Scott address the remaining in alternative, explaining that the language‘s purpose is to capture defendants who lawfully enter a location and then remain, once their license to be there is lost, in order to commit a crime.92 Indeed, the treatise‘s sole
LaFave and Scott directly allude to
The Taylor Court also mentions the Model Penal Code in its analysis, but the cited edition does not include any “remaining in” language at all.97 To the extent the Model Penal Code drafters do discuss the existence of “remaining in” language in other burglary statutes, they are in accord with LaFave and Scott about the genre of bad actors whom that language was meant to reach: those who are initially licensed to be on a property but who exceed their license in order to commit a crime.98
Finally, the Taylor Court noted that its “generic sense” of the offense would have been recognized as burglary by most states at the time Taylor was decided.99 But not all states used “remaining in” language in their burglary statutes—LaFave and Scott list twenty-five in their treatise.100 The states that did include the language at the relevant time appear to have been split in how they understood its scope.
To lift up just one example, New York‘s “remaining in” statute appears to have been particularly influential.101 We know
Not only does the broad version of “remaining in” involve a less culpable mental state on the part of the defendant, it also likely presents less danger to victims. Indeed, the Taylor Court‘s analysis was partially based on the premise that “[t]he fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation.”105 Scenarios in which a defendant trespasses but does not intend to commit a crime must engender less risk of confrontation than ones in which he enters just to commit a crime. The broad reading urged by the government leads to the conflation of this type of conduct with generic burglary, however, undercutting Congress‘s goal of treating like conduct alike for the purposes of the ACCA‘s sentence enhancement and expanding a harsh sentencing enhancement beyond its natural reach.106 Further, in light of the lack of consensus that existed at the time Taylor was decided,107 and that
The government points out that its reading of Taylor‘s “remaining in” language finds support in decisions issued by the Fourth and Sixth Circuits. They are not persuasive. In United States v. Bonilla, the Fourth Circuit considered the Texas
On the other hand, the most recent treatment of the question by the Eighth Circuit considered an expansive interpretation of “remaining in” before deciding to take the opposite tack. In the relevant case, McArthur, the Eighth Circuit held that a materially identicаl Minnesota burglary statute is nongeneric because “remaining in,” for the purposes of generic burglary, is “a discrete event that occurs at the moment when a perpetrator, who at one point was lawfully present, exceeds his license and overstays his welcome.”112 The Eighth Circuit recognized that holding otherwise would “would render the ‘unlawful entry’ element of generic burglary superfluous, because every unlawful entry with intent would become ‘remaining in’ with intent as soon as the perpetrator enters.”113
We decline to retreat from our previous holding that
B.
Following our initial decision that
V.
Herrold argues that even if
A.
As a starting point, we know that the generic definition of burglary outlined by the Taylor Court extends only to the burglary of “building[s] or other structure[s],” and we know that this category generally excludes vehicles.119 Indeed, we have the Supreme Court‘s own language on the subject. In the decisions it has issued after Taylor, the Supreme Court has had occasion to consider whether several other state burglary statutes fit within Taylor‘s generic definition. In holding that these statutes are broader than generic burglary, the Court has suggested that vehicles ordinarily fall outside the scope of generic burglary.
Thus, in Shepard v. United States, the Court considered the ACCA viability of a Massachusetts burglary statute that extended to unlawful entry into “a building, ship, vessel or vehicle.”120 The Court said that “[t]he [ACCA] makes burglary a violent felony only if committed in a building or enclosed space . . ., not in a boat or motor vehicle.”121 More recently, in Mathis, the Court considered an Iowa statute extending the scope of burglary to “any building, structure, [or] land, water, or air vehicle . . . adapted for overnight accommodation of persons, or occupied by persons for the purpose of carrying on business or other activity, or for the storage or safekeeping of anything of value.”122 The Mathis Court held that this definition exceeded
On the question of whether narrower subcategories of vehicles such as RVs and motor homes are generic, the picture gets decidedly blurrier. On one hand, we have the legislative history of the ACCA that the Taylor Court found relevant. While the ACCA itself offers no textual definition of burglary, the ACCA‘s predecessor statute did, and it extended only to buildings.125
We also have the sources that the Taylor Court relied on in crafting its generic definition. As explained before, the sole source directly cited by the Taylor Court for its generic burglary formulation is LaFave and Scott. On the same page of the treatise edition that the Supreme Court cited for its proposition that generic burglary must occur within “a building or other structure,” the authors explain that some state burglary statutes go farther. They write that, in contrast to statutes limited to “buildings” and “structures,” some statutes “extend to still other places, such as all or some types of vehicles.”128 And among the statutes listed as extending to “still other places” is the very Texas burglary of a habitation provision at issue in this case.129 From this, we can conclude that LaFave and Scott did not consider a vehicle adapted for overnight accommodation to count as “a building or other structure“—the locational category that the Taylor Court adopted for its definition.
The weight of federal case law seems to support the conclusion that the federаl generic definition of burglary may not extend to any vehicles, even the narrower subset circumscribed by the Texas burglary of a habitation provision. Almost every federal court that has found itself in the position to consider similar burglary statutes has concluded that the inclusion of any vehicles renders a state burglary provision nongeneric.130 Almost all of the cases that the government cites to the contrary have been overruled131 or pre-dated Shepard and Mathis.
The government appropriately recognizes that vehicles are generally excluded but, on the other hand, it asks that we draw the generic definition‘s line for “building[s] or other structure[s]” to include vehicles that double as “dwellings” or “mobile habitations.” It points to several sources that it argues support its choice to read the definition in this way. The government directs us, for instance, to the Model Penal Code‘s burglary definition relied upon by the Taylor Court. That definition extends to “occupied structures,” which is defined to include “vehicle[s] . . . adapted for overnight accommodation” and others.133
The government also argues that all conduct that would have been considered burglary for the purposes of the common law must also be burglary for the purposes of the ACCA. Because “mobile habitations” such as motor homes and RVs would have been valid common law burglary sites,134 the argument goes, they must also be valid generic burglary sites; the former is just a subset of the latter.135
Finally, the government presents a list of state statutes in effect at the time Taylor was decided. Fixing on the Taylor Court‘s statement that the ACCA‘s generic definition of burglary corresponds to “the generic sense in which the term [was then] used in the criminal codes of most States,” it argues that our reading cannot be correct because it would render too many Taylor-contemporaneous burglary statutes nongeneric. Indeed, according to the government, “the protection of mobile dwellings was part of the vast majority of state codes when Congress enacted the ACCA.”
There are several problems with at least this final line of argument.136 First, the character of the state statutes belies the very limitation the government argues
B.
As we need not decide the question of whether
VI.
To summarize, the burglary provisions encoded in
HAYNES, Circuit Judge, joined by JOLLY, JONES, CLEMENT, OWEN, ELROD, and SOUTHWICK, Circuit Judges, dissenting:
The majority opinion upends years of wеll-settled law. Just over a year ago, this court confirmed that
As a general matter, we are all in agreement, as the majority opinion describes, that the quest in cases such as this one is to determine: (1) what are the elements of generic burglary, and (2) does the Texas statute match those elements? Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If part of the statute does match and part does not, we end up in the divisibility quagmire addressed at length in the majority opinion. But if all parts of the statute match the elements for generic burglary, then the conviction “counts” under the ACCA, regardless of any divisibility issues. I conclude that the latter is true here and, therefore, I respectfully disagree about the necessity of deciding the divisibility of
But analyzing the first question also requires a bit of a step back. Why are we asking what “generic burglary” is in the first place? It is not a law school exam hypothetical but, rather, an attempt to give effect to Congress‘s use of the term “burglary” in the ACCA. See Mathis, 136 S. Ct. at 2252 (explaining that the first of three reasons for the approach employed by the Court is effectuating the intent of Congress). Since the Supreme Court first implemented the categorical approach to the ACCA, it has defined “burglary” as “the generic sense in which the term is now used in the criminal code of most States.” Taylor v. United States, 495 U.S. 575, 598 (1990). Using that measuring stick—and no Supreme Court case suggests we should not—this case becomes much easier.
Both past and present state statutes indicate
None of the above matters, of course, if clear Supreme Court precedent binds us to the outcome described in the majority opinion. Our role as a lower court is to faithfully apply the law as interpreted by the Supreme Court. However, I conclude that the majority opinion goes awry in deciding that the majority opinion particularly relies on the New York Court of Appeals decision in People v. Gaines, 74 N.Y.2d 358 (1989) for its interpretation of the New York “remaining in” statute. Maj. Op. at 24. This reliance is undue. As an initial point, I do not today address the manner in which each individual state has defined “remaining in” within its statute. But as to Gaines specifically, it was not decided until 1989. To say that Congress meant burglary to encompass only the view expressed in Gaines is not logical, because Gaines was not written until after 1986, which is when the ACCA was amended. Also important is that the statute interpreted in Gaines was different from the Texas statute in question as it lacked the requirement that the Texas statute has of unlawful entry coupled with actual commission or attempted commission of a crime.
I begin with
Subsection (a)(3) provides: “(a) A person commits an offense if, without the effective consent of the owner, the person: . . . (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” Thus, (a)(3) requires unprivileged entry into the building or habitation, as required for “generic burglary.” Herrold argues, however, that (a)(3) differs from “generic burglary” because it does not require the intent to commit the “felony, theft, or assault” to have been formed before or at the time of the unprivileged entry. Our court agreed with this overall argument in United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007) (analyzing
As subsequent decisions from other circuits have demonstrated, the analysis of Constante wholly overlooks that unlawfully “remaining in” a building with intent to commit a crime also qualifies as “generic burglary.” United States v. Priddy, 808 F.3d 676, 684-85 (6th Cir. 2015), abrogated on other grounds by United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), petition for cert. filed, (U.S. Nov. 24, 2017) (No. 17-765) (analyzing the same Tennessee burglary statute as Herrera-Montes and coming to a different result); United States v. Bonilla, 687 F.3d 188, 193-94 (4th Cir. 2012); see also United States v. Reina-Rodriguez, 468 F.3d 1147, 1155-56 (9th Cir. 2006), overruled on other grounds by United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir. 2007) (en banc). Bonilla explained that excluding statutes such as (a)(3) is based upon a “too rigid” reading of Taylor “given that a defendant convicted under [§] (a)(3) necessarily developed the intent to commit the crime while remaining in the building, if he did not have it at the moment he entered.” 687 F.3d at 194.
In Taylor, the Court determined that the restrictive common-law definition of burglary could not have been what Congress intended when it deleted a definition of burglary from the ACCA. 495 U.S. at 593-95. The Court reasoned that many states had moved beyond the common-law definition, and “construing ‘burglary’ to mean common-law burglary would come close to nullifying that term‘s effect in the statute, because few of the crimes now generally recognized as burglaries would fall within the common-law definition.” Id. at 594. Instead, the Court explained that “generic 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. at 598 (emphasis added). In light of the Court‘s express rejection of the common-law definition, and the criminal codes оf nearly half the states at the time, the Taylor definition plainly does not require intent to commit an additional crime at the time of entry, as at common law.
In adopting this generic definition, the Court recognized that “exact formulations” of the elements may vary among the states, and so for ACCA purposes, a state statute need only correspond “in substance to the generic meaning of burglary.” Id. at 598-99. Taylor is therefore not concerned with definitional technicalities but, rather, with substantively enforcing Congress‘s policy of singling out a property crime that bears “inherent potential for harm to persons.” Id. at 588. Indeed, the omission of a definition for burglary following the 1986 ACCA amendments suggests “that Congress did not wish to specify an exact formulation that an offense must meet in order to count as ‘burglary’ for enhancement purposes.” Id. at 598-99.
The Fourth and Sixth Circuits have accordingly concluded that unlawful entry combined with an attempted or completed felony or theft therein qualifies as generic burglary under Taylor.5 Indeed, the only
that unlawful entry combined with an attempted or committed felony or theft therein is a “remaining-in” variant of generic burglary because someone who enters a building or structure and, while inside, commits or attempts to commit a felony will necessarily have remained inside the building or structure to do so.” Priddy, 808 F.3d at 685. Even though the statute does not use the words “remaining in,” it nonetheless contains that element because a person must remain in a building to commit a crime inside of it.
Bonilla, Priddy, and this case each illuminate an important aspect of
from invoking the arcane technicalities of the common-law definition of burglary to evade the [ACCA‘s] sentence-enhancement
The majority opinion contends that defining “remaining in” broadly both “involve[s] a less culpable mental state on the part of the defendant” and “presents less danger to victims.” Maj. Op. at 24. I respectfully disagree on both counts. The timing of when intent was formed implicates neither the culpability of the perpetrator nor the extent of danger to victims. If a perpetrator forms intent prior to entering a home but, once inside, discovers nothing worth taking, is he or she somehow less culрable or dangerous than a perpetrator who initially unlawfully7 enters without intent to commit an additional crime but, once inside, discovers something worth taking or, surprised by a resident in the home, commits an assault? The fact that (a)(3) requires commission or attempted commission of the crime implicates an even higher degree of culpability than one who commits burglary simply by forming the requisite intent prior to physical entry.
Consequently, because (a)(3) represents “generic burglary,” its inclusion in
This conclusion leads me to turn to an issue addressed, but not decided, in the majority opinion, which Herrold asserts – whether the definition of “habitation” is overbroad because it includes “a vehicle that is adapted for the overnight accommodation of persons.”
is overbroad under
As an initial note, it is important to remember that Texas draws a distinction between burglary of vehicles that become “habitations” and ordinary “vehicles.” See
Despite these distinct statutes, Herrold argues that
The Supreme Court in discussing “automobiles” in Taylor or generic “vehicles” in the Iowa statute in Mathis was not faced with and did not address the question of whether, for purposes of determining what “generic burglary” involves, Congress would have intended to exclude mobile homes or similar vehicles adapted for overnight use. Rather, Taylor expressed concern about
generic burglary encompassing crimes such as “shoplifting and theft of goods from a ‘locked’ but unoccupied automobile,” which were not clearly violent felonies, and subjecting citizens of different states to different sentencing enhancement requirements under the ACCA. 495 U.S. at 591 (citing
An understanding of Taylor is critical to resolving this issue. That being said, the term “vehicle” does not appear in the ACCA and only becomes an issue as the statute was interpreted by Taylor and applied to state statutes.9 We do not read
ACCA‘s enactment, structural burglary would have included vehicles expressly adapted for overnight accommodation of persons, like the Texas statute.11 Combining those statutes with statutes that include vehicles broadly (which would thus be considered non-generic for ACCA purposes), occupied vehicles would have been included in the burglary statutes of at least 43 states.12 As noted earlier, Taylor explicitly stated that what Congress “meant by ‘burglary’ [is] the generic sense in which the term is now used in the criminal codes of most States.” 495 U.S. at 598. Taylor also repeatedly spoke of a “building or structure,” capturing the idea that the location of the burglary could be a “structure” that was not a “building.” That idea captures well the “vehicle adapted for overnight accommodation of persons,” which Texas includes within its definition of a habitation, as distinct from “automobiles,” which are not included.
The Taylor Court‘s understanding of Congress‘s intent when enacting the ACCA further supports the conclusion that burglary of a “vehicle adapted for overnight accommodation” is generic burglary. The Court noted that Congress did not limit ACCA predicate offense burglaries to those that may be especially dangerous, as “Congress apparently thought that all burglaries serious enough to be punishable by imprisonment for more than a year” were potentially violent and “likely to be committed by career criminals.” Taylor,
495 U.S. at 588. Congress included burglary “because of its inherent potential for harm to persons.” Id. (emphasis added). A person would likely be present where the person is living, irrespective of whether that is a traditional home or a “vehicle adapted for overnight accommodation.” Any other understanding could lead to anomalies, such as a sentencing enhancement for burglarizing an unoccupied building, but no sentencing enhancement if an occupied mobile home is burglarized. This would be inconsistent with Congress‘s intent to protect individuals from harm. Again, there will be some structures of any kind that are unoccupied, but it is the potential for harm that the Taylor court addressed; the burglar may have no way to know whether the particular structure is currently occupied so including both occupied and unoccupied structures in the definition makes sense.
Further, Congress desired to prevent criminals from “invoking the arcane technicalities of the common-law definition of burglary to evade the sentence-enhancement provision.” Id. at 589. Would excluding a dwelling on the basis of whether it has (or, at some time, had) wheels not be invoking one of those very “arcane technicalities“? Taylor drew the line at the potential presence of people, not wheels.13 To say a traditional home is protected by ACCA enhancements whereas a mobile home is not simply does not comport with Congress‘s intent and Taylor‘s reasoning.
In determining the “contemporary meaning of burglary,” the Government notes that the Taylor Court relied on Model Penal Code provisions that explicitly included “vehicles adapted for overnight accommodation” as an ACCA predicate crime. See id. at 598 n.8. At that time, the Model Penal Code stated that “[a] person is guilty of burglary if he enters a building or occupied
structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein.” Id. (quoting MODEL PENAL CODE § 221.1 (AM. LAW INST. 1980)). The Model Penal Code defined an “occupied structure” as “any structure, vehicle, or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present.” MODEL PENAL CODE § 221.0 (AM. LAW INST. 1980) (emphasis added); see also § 221.1 cmt. 3 at 73. Notably, this definition mirrors the language in the Texas burglary statute, and numerous other states’ burglary statutes. See
Subsequent Supreme Court decisions have not contradicted this understanding. In Shepard v. United States, 544 U.S. 13 (2005), the Court addressed a Massachusetts burglary statute that included vehicles and vessels in general. Id. at 15-16. The Shepard Court was principally faced with determining the permissible documents to be used to narrow a statute of conviction following a guilty plea, and therefore was not presented with, and did not address, the narrow subset of “vehicles adapted for overnight accommodation.” Id. at 26. Indeed, the Massachusetts
862 N.W.2d 367, 376-78 (Iowa 2015) (discussing the two prongs). Because it concluded that statute was indivisible, it did not have to determine whether a vehicle adapted for overnight use as an accommodation by itself would qualify, as the Iowa statute also included vehicles used for storage and, thus, encompassed more than generic burglary.14 See Mathis, 136 S. Ct. at 2250 (emphasis omitted).
Because the Supreme Court‘s precedents do not answer the question directly, we are left to analyze whether burglary of a “vehicle adapted for overnight accommodation” in a state distinguishing such burglaries from those of regular vehicles is more like “generic burglary” of a habitation, which is an ACCA burglary, or more like a burglary of a regular vehicle, which is not.
Our sister circuits have divided on this issue while analyzing the versions of their statutes in effect at the time of the case. The Tenth Circuit has directly assessed the Texas burglary statute at issue here, holding that it encompasses only generic burglary. United States v. Spring, 80 F.3d 1450, 1461-62 (10th Cir. 1996) (noting that Texas‘s statute was “not analogous to the theft of an automobile or to the other property crimes whose relative lack of severity the Taylor Court (and presumably, Congress) meant to exclude from its generic definition” (quoting United States v. Sweeten, 933 F.2d 765, 771 (9th Cir. 1991), overruled by Grisel, 488 F.3d at 851 n.5 (en banc)). Most recently, the Seventh Circuit construed the Illinois residential burglary statute to determine that the inclusion of burglary of a “mobile home [or] trailer . . . in which at the time of the alleged offense the owners or occupants actually reside” did not preclude the statute from being considered generic burglary.
Smith v. United States, 877 F.3d 720, 722, 724 (7th Cir. 2017). Regarding a mobile home, the court noted that, under Illinois law, a “mobile hоme” is nothing more than a “prefabricated house,” easily dismissing the argument that a mobile home is not a “building or structure.” Id. at 722-23. Although including the word “trailer” was a closer call, the court looked to the purposes of Taylor to hold that the Illinois residential burglary statute defined generic burglary, despite the fact that it included “[t]railers used as dwellings.” Id. at 724-25 (“We think it unlikely that the Justices set out in Taylor to adopt a definition of generic burglary that is satisfied by no more than a handful of states—if by any. Statutes should be read to have consequences rather than to set the stage for semantic exercises.“).
While other circuits have held that statutes with language akin to “vehicle adapted for overnight accommodation” do not encompass generic burglary, this determination has not been without debate and
An excellent example of the debate associated with this issue is Stitt. In Stitt, the court concluded that Taylor proscribed “all things mobile or transitory” from generic burglary. 860 F.3d at 859. Judge Sutton, writing for himself and five other judges in dissent, disagreed with this characterization of Taylor. Id. at 876 (Sutton, J., dissenting). Judge Sutton replied that the “no-vehicles-or-tents rule implies that every state‘s basic burglary statute is non-generic,” essentially “render[ing] generic burglary a null set.” Id. at 880-81. He argued that this result is not required; “we should give the Court and Congress more credit” than understanding Taylor and the ACCA to mandate an essentially toothless statute. Id. at 881. As Judge Sutton so aptly put it, “[i]t‘s a strange genus that doesn‘t include any species.” Id. at 880.
Lacking a clear consensus, we are thus brought back to our analysis of Taylor, mindful that we need not leave common sense at the door. Both Congress‘s and Taylor‘s intent seem clear – to protect the public from career criminals that commit or have committed potentially violent felonies. Even setting aside the statutes that (a) are likely considered overbroad due to the inclusion of routine vehicles or (b) are potentially divisible, 25 states’ statutes include provisions protecting vehicles adapted or used for habitation.15 The number mushrooms when you add back in the potentially divisible statutes (7 states16) and the statutes already overbroad due to the inclusion of vehicles, or a state court‘s reading of the statute in a way that is overbroad (9 states17). This is not, of course, a binding declaration as to whether those statutes are non-generic or divisible; additional analysis would have to be done. But that so many states’ statutes would be in question ought to give us pause. We should not impute to Congress such a jarring outcome in the absence of a clear
requirement under the law to do so. Careful consideration of Supreme Court precedent plus common sense dictate that this cannot be the result.
Accordingly, I would affirm, and I respectfully dissent from the court‘s determination not to do so.