Michael SMITH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. United States of America, Plaintiff-Appellee, v. Michael J. Khoury, Defendant-Appellant.
No. 17-1730, No. 17-2090
United States Court of Appeals, Seventh Circuit
December 13, 2017
877 F.3d 720
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges. EASTERBROOK, Circuit Judge.
Argued November 14, 2017. Carol A. Brook, Attorney, William H. Theis, Attorney, Office of the Federal Defender Program, Chicago, IL, for Petitioner-Appellant. Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.
This line of argument, however, disregards Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), where the Court held that “physical force” means “force capable of causing physical pain or injury to another person“. All of our examples—poison, leaving a baby outside in the winter, and placing a trussed-up or unconscious person in the middle of a highway—involve “force” as a physicist uses that word: the wrongdoer applies energy to bring about an effect on the would-be victim. None of these examples involves hitting the victim with brass knuckles, but all entail force that is “capable of causing physical pain or injury to another person“. Cf. United States v. Castleman, 572 U.S. 157, 134 S.Ct. 1405, 1415, 188 L.Ed.2d 426 (2014). No more is required for classification under the elements clauses of federal recidivist statutes.
The Supreme Court‘s opinion in Johnson, 559 U.S. at 140-41, refers to murder as the paradigm of an offense that comes within the elements clause of
As for the felony-murder doctrine, which Hill says takes the crime of murder outside
Both murder and attempted murder in Illinois are categorically violent felonies under
AFFIRMED
These appeals, which we have consolidated for decision, present the question whether a conviction for residential burglary in Illinois under
The facts and procedural histories of these cases do not matter. It is enough to say that each defendant was convicted of possessing a firearm, see
Both district judges relied on Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016), which they read as conclusively establishing that residential burglary in Illinois satisfies Taylor. But the only question addressed in Dawkins was whether residential burglary in Illinois includes the element of breaking and entering; we answered yes. Dawkins did not consider whether the Illinois offense includes the element of entering a “building or other structure” (Taylor, 495 U.S. at 598). That a given decision resolves one legal argument bearing on a subject does not mean that it has resolved all possible legal arguments bearing on that subject. See Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (7th Cir. 2017). So defendants’ argument about the building-or-structure element is open.
In Illinois, “[a] person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.”
(a) Except as otherwise provided in subsection (b) of this Section, “dwelling” means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.
(b) For the purposes of Section 19-3 of this Code, “dwelling” means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.
any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
495 U.S. at 599. Subsection (a), in which the phrase “a tent, a vehicle, or other enclosed space” appears, does not apply to the crime of residential burglary. To be convicted of that offense, a person must enter “a house, apartment, mobile home, trailer, or other living quarters“. And that phrase seems to come within Taylor‘s reference to “a building or structure“.
Not so, defendants insist. They contend that a “mobile home” and a “trailer” are not structures. That contention is a flop for a mobile home, which in Illinois is “a manufactured home as defined in subdivision (53) of Section 9-102 of the Uniform Commercial Code.”
Defendants are on firmer ground with “trailer,” which the Illinois Vehicle Code defines as “[e]very vehicle without motive power in operation, other than a pole trailer, designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle.”
Worse, defendants insist, the open-ended statutory reference to “other living quarters” might include houseboats or tents or even cars. The state judiciary has never held that it does include those items, but the bare possibility that it might, defendants insist, means that Illinois law does not come within Taylor‘s definition—for Taylor asks what the elements of the state law include, not what a given defendant did in fact. 495 U.S. at 600-02. (The parties agree that
We conclude that the crime of residential burglary in Illinois does not cover the entry of vehicles (including boats) and tents. These places are listed in subsection (a) of the definition but not in subsection (b), and the Appellate Court of Illinois has held that subsection (b) excludes all vehicles other than occupied trailers. People v. Taylor, 345 Ill. App. 3d 286, 280 Ill.Dec. 477, 802 N.E.2d 402 (2003). That decision logically covers boats and tents as well. Entering those places with intent to steal is ordinary burglary in Illinois but not residential burglary, and both defendants were convicted of residential burglary. The proper treatment of trailers as a matter of federal law remains to be determined, however.
Taylor v. United States set out to create a federal common-law definition of “burglary.” This counsels against reading its definition as if it were a statute. All common law is provisional. The Justices did not consider in Taylor or any later decision whether an occupied trailer counts as a “structure“—or, if it does not, whether the definition should be modified in common-law fashion to include all of those enclosed places in which people live. The Court began the substantive discussion in Taylor by noting an older common-law definition of burglary: “a breaking and entering of a dwelling at night, with intent to commit a felony” (495 U.S. at 592). They added: “Whatever else the Members of Congress might have been thinking of, they presumably had in mind at least the ‘classic’ common-law definition when they considered the inclusion of burglary as a predicate offense.” Id. at 593. The Justices adopted a broader definition—omitting mention of the time of day, the nature of the entered place as a dwelling, and the requirement
Treating Taylor as if it were a statute, that is what four courts of appeals have held. United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) (Tennessee aggravated burglary is broader than generic burglary because it covers “mobile homes, trailers, and tents” used as dwellings); United States v. Sims, 854 F.3d 1037, 1039-40 (8th Cir. 2017) (Arkansas residential burglary is broader than generic burglary because it “criminalizes the burglary of vehicles where people live or that are customarily used for overnight accommodations“); United States v. White, 836 F.3d 437 (4th Cir. 2016) (West Virginia burglary is broader than generic burglary because it protects “dwelling house[s],” defined to include “mobile home[s]” and “house trailer[s]“); United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) (any state law that covers non-buildings is not generic burglary). At least one court of appeals has held the opposite. United States v. Patterson, 561 F.3d 1170 (10th Cir. 2009), reaffirming United States v. Spring, 80 F.3d 1450 (10th Cir. 1996). A panel of the Fifth Circuit agreed with the Tenth, but as it has granted rehearing en banc the rule in that circuit remains to be settled. See United States v. Herrold, 685 Fed.Appx. 302, rehearing en banc granted, 693 Fed. Appx. 272 (5th Cir. 2017).
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. We therefore agree with the Tenth Circuit in Patterson and Spring and with Judge Sutton‘s dissenting opinion (joined by Judges Clay, Gibbons, Rodgers, McKeague, and Kethledge) in Stitt. See 860 F.3d at 876-81. A violation of
In reaching this conclusion we have considered not only that common-law understandings are open to modification as circumstances reveal potential weaknesses but also the Supreme Court‘s own explanation for its definition. The Justices told us that “Congress meant by ‘burglary’ the generic sense in which the term is now used in the criminal codes of most States” (Taylor, 495 U.S. at 598) and set out to produce a definition capturing that sense. Recognizing
After saying that their goal was to capture “the generic sense in which the term is now used in the criminal codes of most States,” the Justices added that their “usage approximates that adopted by the drafters of the Model Penal Code” (Taylor, 495 U.S. at 598 n.8), under which “[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
If defendants in these cases are right, then the Justices said that they were following the Model Penal Code‘s approach but did the opposite. We think it better to conclude that Taylor‘s definition of generic burglary is a compact version of standards found in many states’ criminal codes, including that of Illinois. We grant that, per Shepard v. United States, 544 U.S. 13, 15-16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), an unoccupied boat or motor vehicle is not a “structure.” But just as Taylor did not grapple with all enclosed spaces that people may call home, neither did Shepard. Certainly the Justices did not say in Shepard that they were restricting the coverage of the generic definition adopted in Taylor.
People live in trailers, which are “structures” as a matter of ordinary usage. Trailers used as dwellings are covered by the Illinois residential-burglary statute. The crime in
AFFIRMED