United States v. Paul Prater

however, point, More to the the Ohio determination that the Ohio Supreme Supreme jury’s Court’s discussion of the Court decision was not contrary to or an ability the con- videotape to view Loza’s unreasonable application of Crane. application fession did not make its testimony

Crane rule to exclude Fisher’s

any arbitrary. In summarizing less the

evidentiary videotape, value of the the Supreme by

Ohio Court noted that watch-

ing jury it the could “see and hear tone the interrogation,

and manner of the num- the present, physical

ber of officers char- America, UNITED STATES of room, length acteristics of the and the Plaintiff-Appellee, Loza, interrogation.” N.E.2d 1094. If Loza claiming simply were that by police, his confession was coerced Douglas PRATER, Paul Defendant- Supreme the Ohio Court’s observation Appellant. might have force. But the manner interrogation which the was conducted has No. 13-5039. bearing credibility no on Loza’s defense. jury

Loza did not seek to United States argue Appeals, Court of he relating confessed because of factors to Sixth Circuit. physical circumstances of his confes- Sept. sion, e.g., that he physically was intimidat- questioned long

ed or hours in a small Rather,

space. Loza sought explain to to jury through testimony Fisher’s

he particular psy- confessed

chological makeup personal history him uniquely susceptible

made to the offi- potential

cers’ statements about the harm Dorothy

to if Jackson and his unborn child confess,

he did not making false

confession would be consistent with his

psychological personal history. evidentiary

trial court’s him ruling denied opportunity present in sup- evidence

port of explanation that defense—his sole purportedly

for his false confession—dur- trial,

ing guilt phase and the Ohio identify- Court affirmed without

ing a valid reason to exclude the evidence.

Accordingly, trial because the court ex- testimony

cluded Fisher’s for the reason

condemned Crane and for no other valid

reason, and the Ohio Supreme Court failed and, fact, recognize repeated

error, majority’s I cannot agree with the man an enhanced qualified for

that Prater datory minimum sentence un offense level and an ACCA increased It relied on Manual. the Guidelines der for New prior convictions third-degree burglary. The district qual categorically that these offenses held this was Because ify violent felonies. did not district court and because the error cate “modified Court’s apply determine approach” to gorical which Prater version crimes felony, as a violent qualified was convicted — U.S. —, States, Descamps v. United 2281, L.Ed.2d 438 sen (2013), court’s vacate the district we resentencing. and remand for tence Davis, E. Federal BRIEF: ON Laura Tennessee, of Eastern

Defender Services I Tennessee, Inc., Knoxville, Appellant. for Reeves, Attor- trial, United States Robert M. Prater was jury a Paul Following Tennessee, Greeneville, Office, for ney’s possession of being of a felon convicted Appellee. ammunition, of 18 U.S.C. in violation report1 presentence § Prater’s 922(g)(1). BATCHELDER, BOGGS, and Before: provided § 2K2.1 determined U.S.S.G. WHITE, Judges. Circuit sentencing the of offense the base level § 922(g). Be- under 18 U.S.C. offenses BOGGS, J., of opinion delivered two Prater had at least cause WHITE, J., court, joined. in which refers to the Manual convictions for what 519-23), BATCHELDER, delivered (pp. J. violence,” offense his base as “crimes dissenting opinion. separate a 2K2.1(a)(2). § The level was under also determined presentence report OPINION crimi- armed career qualified Prater as an BOGGS, Judge. Circuit 924(e)(1), nal, § under 18 U.S.C. convictions for a at least three he had presents question This case oc- felony” on different un- committed “violent a conviction for Prater to finding subjected casions. This categorically a “vio- der York law is New sentence of fifteen 924(e), mandatory a minimum § com- felony” under 18 U.S.C. lent 924(e)(1). § It years imprisonment. monly referred to as the Armed Career (ACCA). offense level to also raised juryA Act convicted Criminal 4B1.4(b)(3)(B). The presentence § under being possession a felon Paul Prater twenty criminal- assigned Prater ammunition, report of 18 in violation U.S.C. corresponded to history points, which 922(g)(1). § The district court determined Guidelines Sentencing Commission prepared ed States Office 1. The United States Probation report using of the Unit- Manual. 2011 edition An criminal-history category subject of VI. offense was to a 180-month mandatory criminal-history category level of 33 and a minimum sentence. After allocution and a guideline range factors, in a of 235- § of VI resulted brief reference to the imprisonment. months of district court sentenced Prater to 264 imprisonment. months of report identified four presentence qualifying Prater as predicate convictions appeal, On Prater argues that he lacked an armed career offender under predicate necessary offenses to qualify 1) 924(e)(1): 19, 1980, February § con- armed career criminal under attempted third-degree burgla- viction for 924(e)(1) § § 4B1.4. argues He also 2) 24, 1988, February ry; conviction for sentencing that the in deeming erred 3) robbery; February third-degree these same offenses “crimes of violence” third-degree burglary; conviction for assigning when Prater a base offense level 4) 30, 2000, a March conviction for § 2K2.1. Specifically, argues under he third-degree burglary. All four New convictions for Niagara County convictions were in Court attempted third-degree bur- February New York. Prater’s two glary satisfy statutory do not definition commit- convictions were conduct 924(e)(2)(B) § felony” of “violent ted on different occasions. and the Manual’s definition of “crime of 4B1.2(a). § violence” under objected presentence

Prater re- classification of him as an armed port’s important issue is because were 924(e) career criminal under 18 U.S.C. Prater not sentenced as an armed career § 4B1.4. He stated that he on relied criminal, his base offense level would have arguments previously raised. Prater § been 24 under 2K2.1(a)(2) presuming — briefly arguments: summarized these history Prater the has same criminal score right suspend- his to bear arms had been and, thus, history of 20 in criminal cate- revoked, law; ed, not under New York gory guideline range his would VI—and overbroad; vague § 922(g)(1) was have been 100-125 months. He also would provision that the of the Armed Ca- subject be ACCA’s 180-month Act, 922(e)(1), § reer Criminal codified minimum If mandatory sentence. Prater’s Eighth prohibi- violated the Amendment challenged qualify as neither punishment. tion on cruel and unusual violence,” “violent felonies” nor “crimes of objec- The district court overruled Prater’s then base offense level would be Prater’s It that Prater an tions. determined was 2K2.1(a)(4) guideline § and his 20 under armed career criminal because each of his range would be 70-87 months —well under qualified offenses predicate as “violent the 264-month sentence that Prater re- 924(e). felony” § under ceived. 8, 2013, January On the district court sentencing hearing. sentencing,

held a At II previously Prater renewed his raised ob- A jections objec- any but did not raise new dispute, an initial parties tions. The district court did not rule on matter, objections, stating appeal. Prater’s that it had al- our standard of review on ready presen- done so. It relied on the Prater asserts that we review do novo both report’s tence determination that conviction constitutes a Prater’s whether 924(e) § guideline range felony” was 235-293 months. The “violent and a district court also determined that Prater “crime of violence” under the Manual. to list the proceeded § He 4B1.4.” agrees USSG government Br. 8. The

Appellant by relied on offenses predicate novo but ar- four ordinarily de that review date of providing the report, claims presentence review Prater’s we must gues that conviction, and conviction, Prater failed the offense plain for error conviction, At offense. For each claims below. the date of appellate to raise specific paragraph his current Prater raised also cited to Prater issue is whether sentencing court. that classified report presentence of the claims before armed- predicate as a for the conviction and thus a claim preserve To In purposes. the second career-criminal review, must “ob party plain-error avoid that he “relies on Prater stated paragraph, pro action” and also court’s ject[t] previously raised on this arguments objection.” grounds “the vide pleadings.2 referred to issue” and 51(b). “ap A must party Fed.R.Crim.P. on do not touch prior pleadings Those ground now judge the trial prise burglary and at- v. States appeal.” on United asserted under New tempted (6th Cir.1975). 637, 653 512 F.2d Mayes, constitute “violent felonies.” York law a suffi of error to “constitute For a claim arguments Prater himself summarized must objection,” party ciently articulated but did not men- prior pleadings in those degree of reasonable “object with that argument third-degree-burglary tion his adequately would have specificity which summary. this court of the true basis the trial apprised Bostic, v. objection.” United States for his of Pra- Although paragraph the second (6th Cir.2004); accord objection discusses addi- ter’s statement Indiviglio, States issues, albeit paragraph, the first tional Cir.1965) (en banc) (2d (origins of the barely, preserves Prater’s properly vio- standard). reasonable-degree-of-specificity First, language lent-falony claim. ground specific that “the requirement sentencing memorandum states made clear is to afford objection as an “objects designation to his that he remedy any judge opportunity trial Criminal under 18 U.S.C. Armed Career govern to afford the claimed error and 924(e) (emphasis § 4B1.4.” and USSG to come forward with opportunity ment added). Prater can mean that This to the claim.” United evidence relative objected presentence report to the (2d Bryant, States person that he was “a he did not believe Cir.1973). 922(g) of 18 of [Title who section violate[d] and has three States Code] Here, probation to the Prater submitted by any court ... for a convictions previous objecting two-paragraph office a statement offense, drug violent or a serious report. In the first presentence to the both, committed on occasions different “objects Prater stated that he paragraph, 924(e)(1). Second, § from one another.” as an Armed Career designation to his 924(e) officer, responding to Pra- probation § under 18 U.S.C. Criminal arguments the mo- prior and denied Specifically, to two mo- dressed these Prater refers motion, argued Prater tion. In the second to dismiss the indictment. In first tions motion, prior merely suspended req- his argued that he lacked the Prater rights civil under New it and did not revoke his mens because he did not know uisite rea law; prohibiting argued that possess he also illegal felon to York was for convicted possessing ammunition violates 15-year felon from and that the ACCA's ammunition Amendment. The district mandatory violates the the Second minimum sentence denied this motion as well. Eighth The district court ad- Amendment. objections objection, in an to the ter’s addendum stood Prater’s it addressed on merits, it presentence report, important felt and overruled it. appeals state that courts have found “[t]he so, however, Not with Prater’s second qualifying to be con- [Prater’s convictions] claim, that the district court erred in de- ” Third,

victions as ‘crimes of violence.’ termining his base offense level under court, denying objec- district Prater’s 2K2.1(a)(2), § required which finding that tions, specifically stated that “each of [Pra- he had at least two felony convictions violations New law is ter’s] for a “crime of Nothing violence.” in the felony’ purposes ‘violent of the ACCA.” suggested record could have to the district It cited two cases that also Second Circuit degree court with a “reasonable specific- discuss whether certain crimes constitute Bostic, ity,” ground 371 F.3d at that a violent felonies and crimes violence. objection for Prater’s was that Thus, clearly the district court understood convictions did not constitute “crimes of objection the basis for this and addressed 4B1.2(a). We, § violence” under there- Here, it. there is no need consider fore, review Prater’s crime-of-violence objection whether Prater’s “would have plain claim for error. adequately apprised the trial court of the Bostic, objection,” true basis of [the] B actually apprised F.3d at because it the trial court of such. Because the first violent-felony Because Prater’s claim is paragraph sentencing memo- preserved, we review de novo the district did, fact, apprise randum the trial court legal court’s underlying conclusions its ap- ap- of the basis his current claim on plication of the armed-career-criminal ad- peal thus afforded the sentencing —and justment § 4B1.4 and of the manda- opportunity remedy court an 924(e)(1). tory minimum sentence under claimed error —we find that Prater’s vio- Bolds, See United States v. 511 F.3d lent-felony properly preserved. (6th Cir.2007). Because Prater did not exchange between Prater’s counsel claim, preserve his crime-of-violence it is sentencing and the district court at does forfeited, plain and we review it for error. not affect this At sentencing, conclusion. Vonner, United States v. the district court if asked Prater’s counsel (6th Cir.2008) (en banc). presentence report he had reviewed the

with Prater. Counsel informed the court Ill objections that he had “no or complains The Guidelines Manual instructs sen- other than previously what we raised.” courts, tencing calculating when a defen- added). (emphasis The district court stat- guideline range, dant’s to determine the it “already ed had ruled on [Prater’s] ob- offense-guideline applicable section to the jections.” It noting was after that the lBl.l(a)(l). § offense of conviction. previously court had addressed Prater’s presentence report, adopted by the district objections did the court ask coun- Prater’s change, correctly court without determined agreed sel if he that imposed the ACCA guideline § 2K2.1 the appli- is section mandatory 180-month minimum sentence. cable to Although objection convictions under 18 U.S.C. designa- Prater’s to his criminal, § A. 922(g). app. tion as an armed See U.S.S.G. This sec- career con- objections assigns tion an for presentence tained his offense level defendants ammu- report, sparse, objection possession was convicted of unlawful of was made, clearly sentencing as the district court under- nition. After a court deter- case the two terms offense-guideline because law treats appropriate mines the section, similarly, the court to we first address whether Prater the Manual instructs qualified offense level. an armed career properly base as determine 2K2.1(a) lBl.l(a)(2). specifies § Section criminal. nature of levels based on the offense

base presentence offense. The a defendant’s A. “Armed Criminal” Career correctly determined defen- report Felony” and “Violent of 24 a base offense level if dants receive total of 33 Prater’s offense level derived as a felon with at they possess ammunition 4B1.4, § provides from which an offense- for either a prior convictions least two adjustment level for defendants whose or a violence controlled-substance crime of history as qualifies criminal them “armed 2K2.1(a)(2). § presentence offense. career criminals.” The Manual’s definition felony noted that Prater had report incorporates “armed career criminal” of third-degree attempted convictions provided by A standard statute. defen- robbery. In third-degree and for burglary is an career criminal” for dant “armed Prater a level of 24 assigning base offense subject § purposes 4B1.4 if he “is to an 2K2.1(a)(2), re- presentence § under provisions enhanced sentence under of necessarily that these prior concluded port 924(e).” § 18 U.S.C. felony two constituted “at least convictions ... violence.” of of crime[s] 924(e), turn, subjects Section defen- 2K2.1(a)(2). § On identifies appeal, Prater 922(g) § convicted to an dants under en- as argues conclusion error and this mandatory hanced minimum sentence qualify convictions do not as if years they fifteen at least have three of violence.” “crimes prior convictions for “a violent or a both, offense, drug serious or committed sentencing determines After a on occasions from one different another.” level, it must de- base offense defendant’s 924(e)(1). § This what case concerns con- applicable adjustments termine based on felony” stitutes “violent lBl.l(a)(6). § in- history. criminal These 924(e)(1), § which determines whether a qualifies whether a clude defendant as § subject adjust- defendant 4B1.4’s what the Manual to as a “career refers an ment as armed career criminal. Prater offender” or “armed career criminal.” argues that his New York convictions for 4B1.1, case, §§ 4B1.4. In third-degree attempted presentence report determined that he not burglary do constitute Manual’s ca- met the definition “armed 924(e). § “violent felonies” under “subject reer criminal” because he was because, an armed career criminal under and, thus, Prater’s offense level Prater identifies this quently, an enhanced 18 U.S.C. he also under argues, § sentence presentence report adjusted 924(e).” 4B1.4(a). he did adjustment under the upward § 924(e). to level § provisions qualify as 4B1.4(a) Conse- error involves use, physical crime “violent er; one The statute itself year that punishable ^[2] felony.” use of force burglary, against “[1] explosives, use, A has as an element provides “violent or a term arson, threatened person felony” a definition of ^[3] greater or otherwise extortion, use of anoth- is any than a presents Because we review Prater’s armed-ca- conduct involves that serious injury claim and his crime- risk of potential physical reer-criminal de novo anoth- 924(e)(2)(B). only § claim plain of-violence for error and er.” son, extortion, presentence report, Prater’s or involves use of explo- court, by the adopted district determined sives”—or whether the statute falls within prior that Prater had four New York con i.e., the act’s “residual “other- offense” — predicate victions serve as offenses wise involves conduct presents a seri- purposes. They for armed-eareer-criminal potential ous risk of physical injury to 1) February are: a conviction for 924(e)(2)(B)(ii). § another.” 2) attempted third-degree burglary; a 24, 1988, February conviction for third- 1. The Enumerated-Offense Clause 3) 24, 1988, degree robbery; February prior A qualifies conviction as an ACCA conviction third-degree burglary; predicate arson, offense if it burglary, “is 4) 30, 2000, a March at conviction for extortion, explosives.” involves use of tempted third-degree burglary.3 Prater 924(e)(2)(B)®. § “To determine whether dispute does not the third-degree- past conviction is for one of those robbery predicate conviction is a offense. crimes,” courts employ “categorical ap i.e.,

At issue is whether he has two more — proach,” they in which “compare the ele and at ments of forming the statute the basis of tempted third-degree burglary, under New the defendant’s conviction with the ele law, are “violent felonies.” i.e., ments ‘generic’ of the the of crime — law, person Under New York is “[a] commonly fense as understood.” Des guilty of degree the third when — States, U.S. —, camps v. United he knowingly unlawfully enters or remains (2013). S.Ct. 186 L.Ed.2d 438 in building with intent to commit a crime qualifies “The conviction as an ACCA § therein.” N.Y. Penal Law 140.20. A predicate only if the statute’s elements are “building” ordinary meaning” includes “its as, than, the same or narrower those of the structure, “any and also vehicle or water- generic offense.” Ibid. craft overnight lodging per- used for sons, by persons carrying or used on 924(e) § “burglary” word therein, business or used as an elementary term of art. The Court has school, secondary or an inclosed motor “burglary” determined that does not mean truck, or an truck inclosed motor trailer.” pri- “whatever the State of the defendant’s 140.00(2). § burglary.” or conviction Taylor defines as States, 575, 580, 590-92,

This statute not does as an ele- v. United “ha[ve] U.S. use, use, (1990). ment the or threat- 110 S.Ct. 109 L.Ed.2d 607 physical against ened use of force per- simply carry Nor does it its at definition son another.” common law: “the breaking entering U.S.C. 924(e)(2)(B)(i); Johnson v. dwelling house of another in the cf. States, 559 U.S. 176 nighttime S.Ct. with the intent to commit a felo (2010) 3, 592-96, (interpreting ny.” L.Ed.2d 1 n. ACCA’s Id. clause”). determine, “physical-force in deciding We 2143. What determinative then, qualifies whether the statute falls within the whether a crime is whether it elements, Armed specified by Career Criminal Act’s “enumerat- certain “ha[s] i.e., ed-offense ar- burglary, happened “is to be ‘bur- [whether it] labeled clause” — nal, adopted presentence appears 3. The district court the district court to have relied report change. overruling without But three It did on the latter convictions. 19, 1980, objection February that his not mention the convic- qualify attempted third-degree burglary. did not him as armed career crimi- tion for ” of versions multiple, alternative 588, 110 S.Ct. 2143.4 Id. at glary.’ 2284; States v. by Id. at see United “burglary” ref crime.” defined Court Supreme (6th 759, contem F.3d Cir. accepted Covington, 738 generally “the erence to 2014) “the term” and to statute divi meaning (Michigan prison-escape of [the] porary at most States.” Id. it sev Descamps codes of “lists criminal sible under It concluded that 2143. eral, ways 110 S.Ct. to violate the stat alternative 924(e), § is a crime in “burglary,” as used ute”); Hockenberry, 730 United States unlawful or Cir.2013) has “the basic elements (6th (Pennsylvania in, into, remaining entry or unprivileged Descamps divisible under burglary statute structure, com with intent to or building in the alternative elements because it “lists at 110 S.Ct. 2143. Id. mit a crime.” text”). third- A commits statutory person as to this crime Court refers Supreme York when he burglary in New degree Descamps, 133 S.Ct. burglary.” “generic unlawfully” enters or remains “knowingly require does not This definition at 2283. structure, vehicle, or watercraft “any an element statute have as burglary that a truck, an inclosed motor ... or an armed, building that a be person that a 140.20, §§ motor truck trailer.”5 inclosed involved. See occupied, or that force be 140.00(2) added). The offense (emphasis 597, 110 S.Ct. 2143. at id. an “indivisible” statute— is not rendered what the Su penal laws are Certain elements,” containing one “not alternative offenses be calls “divisible” preme Court 2281—simply at a Descamps, 133 S.Ct. bec out one or more elements they “se[t] cause itself, provision prohibitory use Des in the alternative.” of the offense 140.20, “building.” § uses the word at 2281. When a statuto camps, 133 S.Ct. law, statutory defini Under New offense elements ry potential code “list[s] 140.00(2) § “appli “building” tion of alternative,” opaque it in the “renders prohibitory provision. cable” to part in the defen played which element penal A state’s code structure 140.00. Id. at 2283. The dant’s conviction.” devel Supreme erase the Court’s does not of a “divisible” gave, example Court and “divisible” oped distinction between statute, “stating burglary involves one by distributing ele offenses “indivisible” entry building an automobile.” into statutory provisions. ments across various Id. at 2281. is “divisible” turns on Whether an offense elements, at Descamps, 133 S.Ct. its actual understanding, this third- Under provides on whether a state 2284-85 — not New York law is a degree for different elements. To “comprises separate offense because it labels divisible relevant, pages opinion legisla- devoting 10 [the] we note that a 4. To the extent a definition of history, except version of the ACCAincluded show that we have tive “burglary.” Taylor, See 495 U.S. at given consider- this case close and careful Congress omitted the definition S.Ct. 2143. urging "[w]e and must find some ation” See id. at when it amended the statute. demonstrating way our conscien- better suggest- 110 S.Ct. 2143. The Court tiousness.”). “may ed that this have been an inadvertent drafting process.” casualty complex Id. vehicles, are kinds of Watercraft and trucks 589-90, 110 S.Ct. 2143. The Court has because, as is not redundant but the statute legislative already meticulously provided the below, only applies explained it to certain history statutory “burglary,” id. at term watercraft, whereas it kinds of vehicles 581-90, 2143, and so we need not applies truck[s]” motor to all "inclosed here, repeat it see id. at 110 S.Ct. 2143 trailer[s].” motor truck "inclosed J., (Scalia, concurring part concurring judgment) (“discernfing] in the no reason for otherwise would mean that the But the conclude alternatives of bur- glary vehicle, watercraft, of a burglary offense criminalized under New inclosed mo- truck, tor and inclosed in a motor-truck trailer law would be indivisible state York generic do no match the offense. It makes that codified its laws like New York and no difference that New York has defined imported would be divisible a state that “building” to mean vehicles and watercraft. “building” directly of into the definition “building” Court’s use of in its defini- It prohibitory provision. is this exact tion generic building of “generic, rested on state-by-state variance that the Court has contemporary meaning.” Taylor, 495 U.S. sought jurisprudence. to avoid its ACCA at 110 S.Ct. 2143. States cannot 590-92, Taylor, See 495 U.S. at 110 S.Ct. bring offenses within the Court-defined Third-degree burglary 2143. under New “generic by giving crime” idiosyn- terms then, law, York is a divisible offense. meaning. cratic A may presumably, state eompare- In order to conduct the chooses, if it “entry define the term into test when a statute the-elements divisible in” remaining “gazing upon” to mean in its involved, is what employ courts the Su statute; burglary but the elements of that (not preme very Court has “labeled inven burglary statute would not match those of tively) categorical ap ‘modified “generic burglary.” So too here.6 ” proach.’ Descamps, 133 at 2281. S.Ct. Because one alternative of New York This approach two-step process. third-degree burglary does not “ge- match First, courts determine whether “one al burglary,” neric the modified categorical (say, building) ternative matches an ele approach looking beyond calls for the mere [anjother offense, ment in the general but fact of Descamps, conviction. 133 at S.Ct. Ibid, automobile) (say, (par does not.” sentencing may 2281. The consult a case, original). enthetical If that limited amount of material to determine courts can “consult a limited class of docu prior the nature aof conviction: “the stat- ments, jury such in as indictments and definition, document, utory charging writ- structions, to which determine alternative plea agreement, transcript plea ten of col- formed the basis of the defendant’s loquy, any explicit finding by factual Only conviction.” Ibid. then can the court the trial judge to which the defendant categorical approach “do what de States, Shepard assented.” v. United 544 compare mands: the elements of the crime 13, 16, U.S. 125 S.Ct. 161 L.Ed.2d of conviction ... with the elements of the (2005). Here, the district court did generic crime.” Ibid. any Shepard not look to materials to de- Here, whether elements New prior burglary termine whether Prater’s match those of burglary convictions were for of a “build- generic burglary depends on which alter- ing Taylor, or structure.” U.S. native version of the crime is used. The court, 110 S.Ct. 2143. The district in over- of third-degree burglary alternative of a ruling objections counting building, offenses, “ordinary meaning,” with its predicate convictions as 140.00(2). generic matches the offense. that it it three certifi- noted “has before 2281, 2284; States, Additionally, 6. has re- v. United Court Chambers 122, 126, peatedly treated a statute criminaliz- U.S. 129 S.Ct. L.Ed.2d 484 States, (2009); ing burglary building Shepard of a or a vehicle as the U.S. 15-16, quintessential example of a case where one 125 S.Ct. 161 L.Ed.2d 205 (2005); Taylor, alternative form of the crime does not match 495 U.S. at generic burglary. Descamps, See 133 S.Ct. at ge- in its the offense actually committed These certificates disposition.” cates Ibid, added). (emphasis of the record part neric form.” were disposition on below, they of the record part nor are is whether defen- is determinative What these “certificates Copies of appeal.7 for a ‘prior convictions’ dant “has three by Pra- to this court provided disposition” a defendant [whether] violent —not only the however, to show ter, appear such a crime.” ... has thrice committed Prater was convicted fact that mere “[T]urn[ing] an elements- at 2287. Id. third-degree rob- third-degree burglary, one an evidence-based inquiry into based third-degree burgla- bery, and prece- the Court’s] ... has no roots [in 22-24. These doc- App. ry. Appellant See decisions, ... subverts those [and] dents of the uments, they part were even if sup- the rationales conflicting with each of record, for the district are insufficient categorical approach the porting convict- that Prater was conclude court to Ibid. to undo all its benefits.” threatening same elements “the ed of an offense with proper analysis the entails To clear: than, as, generic of the those or narrower crime of elements of the comparing “the 133 S.Ct. at 2281. Descamps, offense.” of the ... the elements conviction with the district light In the record before Descamps, 133 at generic offense.” S.Ct. court, attempt- added). prop- on (emphasis Reliance 2281 qualify third-degree burglary do ed may alone make Shepard er documents enu- under the ACCA’s “violent felonies” impossible, inquiry “[b]ut this difficult clause. merated-offense ap- often frustrate absence of records will that “un government asserts categorical ap- plication of the modified disputed [Pra facts in the record indicate Johnson, U.S. at 130 proach.” 559 in actually building the burglarized ter] S.Ct. sense, and thus committed traditional its Additionally, government the defends Br. 10. The generic burglary.” Appellee by present Shepard to evidence failure pre- government quotes cites and Prater’s stating that “it had no incentive to obtain re presentence Prater’s report. sentence given previously [Pra that documentation port proper Shepard not a document is agreement his ter’s] factual Prater did not assent its Appellee Br. 10. predicates.” were ACCA 544 at Shepard, statements. See U.S. government’s obli conception This Moreover, govern 125 S.Ct. 1254. It gation sentencing at is backwards. fundamentally misconstrues how the ment “government bears the burden [that] works. The categorical approach modified penalties proof regard with to the various emphatic that sentenc Supreme Court the sen imposed it seeks to have under courts, analysis, ing conducting this v. Co tencing guidelines.” United States must not focus on the facts the record (6th Cir.1996). wart, Pri- 159 actually the acts that a defendant com filed a sentencing, government or to Descamps, at mitted. See 133 S.Ct. in which it affir sentencing memorandum key, em has] 2286-91. “The Court [the presentence in the re elements, matively concurred not facts.” Id. at phasized, is port’s recommendation that total 2283. It does not matter if “the defendant entry contains the district docket. That government that the record con- 7. The asserts overruling objections, Prater's Shepard New York court’s order tains "one document —a "ha[ving] . before it pri- which references the court disposition certificate of Defendant’s —for disposition,” but it does Appel- three certificates of conviction." disposition. the certificates of entry on the district- not contain lee Br. 9. It cites to James, offense level was clause.8 U.S. 1586; 4B1.4(b)(3)(B). Gibbs, accord gov- The “incentive” the United States v. (6th Cir.2010). inquiry that it

ernment had was bore the burden is the same: it comparing involves sentencing justify Prater as an armed elements of the prior offense of conviction objected criminal. career Prater to his with the element contained in the residual criminal, designation as an armed career clause. Courts must ask “whether the government respond. and the did not Ad- elements type are of the ditionally, government points to no- offense justify would its inclusion within the resid- where in the record where Prater ual provision, without inquiring into the “agree[d] that convictions were specific conduct of particular offender.” predicates.” Appellee ACCA Br. 10. Pra- James, 550 U.S. at 127 S.Ct. 1586. ter, fact, objected point. to this Here, “pivotal question” is whether knowingly entering remaining or unlawful- 2. The Residual Clause ly in a “building” ordinary building, a —an a vehicle, watercraft, a an inclosed motor A prior qualifies conviction as a “violent truck, or an inclosed motor-truck trailer— felony” under “residual ACCA’s with the intent to commit a therein if presents clause” it “involves conduct that presents is conduct that a serious risk of potential physical injury physical injury 203, a serious risk of to another. Id. at 924(e)(2)(B)(ii). S.Ct. 1586. to another.” We must third-degree burglary determine whether above, explained As burgla- attempted third-degree burglary un- ry under New York law is a divisible of- der New York law meet this criterion. At fense. Consider three alternative versions outset, we note that the Supreme of the provided by elements offense

Court has held that the residual clause statute. One version requires breaking categorically does not attempt exclude all (i.e., into a building ordinary sense James, 200, offenses. at 550 U.S. 127 “generic burglary”). Another requires S.Ct. 1586. breaking into a vehicle or watercraft used business, lodging, or A schooling. employ

Just as courts the categorical requires breaking third version an into approach to determine whether a truck an inclosed motor or inclosed motor- conviction within falls the enumerated-of- trailer, truck regardless of how those ob- clause, Descamps, fense at S.Ct. jects are used. they so too employ categorical must approach to determine whether an Supreme already offense has Court deter- qualifies predicate as a under the generic burglary residual mined that an presents clause); Denson, Supreme Descamps 8. Since the Court decided al v. States (6th Cir.2013) (convictions year, repeatedly applied last we have 608-10 under categorical approach categor- inciting-violence modified to Ohio divisible statute are not conducting ically statutes when a residual-clause crimes of violence under the residual Mitchell, analysis. See United States v. clause but defendant's conviction a crime of (6th Cir.2014) (convic- documents); light Shepard F.3d 1060-67 violence in Unit- Johnson, robbery App'x tions under Tennessee statutes are ed 530 F. 532- States (6th Cir.2013) (convictions categorically violent felonies under the residu- under Tennes- clause); Covington, robbery categorically al United States v. see statutes are not vio- Cir.2014) (6th (convictions 764-65 lent felonies under the residual clause but Michigan prison-escape robbery are a statute defendant's conviction violent felo- documents). categorically light Shepard ny violent felonies under the residu- curtilage comparable to entry of the persons.” harm to potential “inherent attempted entry of a struc- posed by at Taylor, 495 U.S. Our, a build- inquiry, that an offender enters then is whether “The fact ture.” Ibid.9 creates the a crime often ing to commit posed by breaking into vehicle the risk a violent confrontation be- possibility business, lodging, or or watercraft used for occupant, care- offender and tween the mo- breaking into an inclosed schooling or taker, person other who comes or some “compa- trailer is tor truck or motor-truck has also de- investigate.” Ibid. The Court by burgla- posed generic to the risk rable” attempted generic burglary termined that ry. “[i]nterrupting an the same risk:

presents alternative form of Consider first the would- doorstep at the while intruder York that New creates burglar attempting break-in be knowingly entering or has as its elements comparable of violent confrontation risk unlawfully in a vehicle or wa- remaining him posed by finding inside business, or lodging, tercraft used for James, 550 U.S. structure itself.” informs us that schooling. Common sense 127 S.Ct. 1586. differ, in certain vehicles and watercraft has not answered Court respects, ordinary meaning from the breaking into either vehicle watercraft, for in- buildings. Vehicles and business, or lodging, used for watercraft stance, mobile, may buildings whereas mo- schooling breaking into an inclosed not; generally are vehicles and watercraft presents tor truck or motor-truck trailer roofless, buildings are may be whereas generic burglary. The the same risk as generally enclosed. But a review of the has, however, a frame- provided Court suggests cases that the Supreme Court’s James, In the Court considered work. “building” of in the defini- salient feature attempted whether a conviction for that it generic burglary tion of is the idea qualified as a burglary under Florida law live, congregate, place people is a where predicate under the residual clause. Id. at example, For likely or are to be found. 195, 127 1586. The Florida law en- S.Ct. burglary of a the Court has said also, burglary and simi- compassed generic a building possibility entails the of violent law, provided lar to the New York “occupant” confrontation with an or “care- element of unlawful en- alternative offense Taylor, taker.” 495 U.S. at 588. It has try curtilage dwelling. of a Id. at onto burglary “entering also described as onto 212, held 127 S.Ct. 1586. The Court first property” another’s and described bur- attempted generic burglary fell within glar doorstep.” as an “intruder at 211-12, 127 the residual clause. Id. at James, 550 U.S. at 127 S.Ct. 1586. The then considered S.Ct. 1586. Court this alter- specifically New York restricts attempted entry unlawful third-degree burglary to native form of fall within the residual curtilage would also overnight vehicles or watercraft “used At clause. Id. at 127 S.Ct. 1586. by persons or lodging persons, of used outset, acknowledged that “the the Court therein, used as carrying on business or curtilage inclusion of the takes Florida’s elementary secondary or school.” an underlying burglary of outside the offense ” 140.00(2). Thus, encompass- the offense ‘generic burglary.’ definition of Ibid. To entry unlawful of a houseboat but not a asked es question, resolve this the Court canoe, recreational of a food truck but not posed by attempted whether the “risk James, yes. S.Ct. 1586. 9. The answer is 550 U.S. seaplane,

a recreational of a mobile home held that single even a alternative set of not a used as classroom but school bus. elements a statute that does not fall By restricting application places its within the residual prevents clause a prior found, people likely where are to be New conviction from serving predicate. as a statute, applied York’s to ve- See United States v. Mosley, 575 F.3d watercraft, sufficiently (6th Cir.2009) hicles and is simi- (prior 607-08 conviction for generic burglary. posed lar to The risk applying state law person who “as- to that comparable generic burglary. saults, batters, wounds, obstructs, opposes, or endangers” a law-enforcement officer Now consider the alternative form of did not predicate serve as a because “ob- third-degree burglary that has as its ele- element). structs” a possible was knowingly ments entering remaining or unlawfully in an inclosed motor truck or government The argues also motor-truck trailer. There is no restric- that breaking into an inclosed motor truck tion the motor truck or motor-truck or motor-truck presents trailer some “risk business, lodging, trailer be used for aof violent confrontation between innocent schooling. Consequently, the risk of a third-parties burglar.” and the Appellee burglar encountering person another —and Br. 15. But dispositive this is not the of a “violent ensuing, Tay- confrontation” inquiry. question is whether that risk lor, 495 U.S. at 110 S.Ct. 2143—is “comparable posed by to that ... entry significantly Breaking less. into a motor James, of a structure.” 550 U.S. at truck or a motor-truck trailer of course It is not. Just as a entails some risk of physical injury to a i.e., a definite given list of ele crime — person, but that risk is simply “compa- not present ments —need not injury risk of severity rable” in or likelihood to the risk in all qualify cases to as a felony, violent so posed by generic burglary. too does possibility injury some predicate. suffice to make a crime a See government maintains that the “risk are, id. at S.Ct. 1586. There involved the commission of a New course, ways committing generic even third- kind, burglary that “pose do not a realistic risk degree burglary exactly is the same injury of confrontation or anyone to risk as is involved in the commission of —for example, a break-in an unoccupied [:Taylor’s generic burglary.” Appellee ] added). structure located far off path the beaten (emphasis Br. That assertion away any potential from intervenors.” simply not A credible. motor truck is Ibid. But analysis under the residual likely less to than occupied building, be a “inherently probabilistic clause rests on truck, burglarizing average an motor trailer, concepts.” proper inquiry Ibid. ... situated, “[T]he let alone a likely wherever encompassed by is whether the conduct pose does not the same burglariz- risk as offense, a the elements of the ing building.10 government then in the ordi case, nary presents asserts that a ‘buildings’ potential “most of the which serious risk 208, 127 prohibits injury New York to burglarizing are another.” Id. at S.Ct. added). places occupants likely (emphasis According where are to be to the present.” Appellee (emphasis government, Br. 14 add- confrontation that “[t]he ed). previously might Most is not all. have burglar We occur between the [of Burglarizing unoccupied may an police motor truck for caretakers and officers probably present also does not even the same likely respond building more to ato break-in. burglarizing unoccupied risk building, that not be way in a would commit a crime trailer] motor-truck truck or

motor Supreme Court felony. As is no less a violent investigator non-occupant must sentencing court year, the might said last the confrontation than serious fact that the defendant burglar occupant only and an “look occur between falling Al- crimes with Br. 15. convicted of Appellee been ha[s] of a structure.” strong reasons to doubt and not to the facts categories, are in certain though there assertion is convictions.” Des this,11 government’s underlying if the even remand, posed the risk true, show that 133 S.Ct. at 2286. On camps, it does not Shepard to doc burglary comparable sentencing may look by motor-truck burgla- category of by generic to consider which posed only to that uments likelihood may a con- of. It Here, possibility of Prater was convicted the mere crime ry. bystander of bur burglar and that Prater was convicted between turn out frontation “ordinary a motor truck with its building of a during glary break-in bring or watercraft meaning” trailer is insufficient or of a vehicle motor-truck business, schooling. third-degree form of bur- lodging, this alternative used for opportu clause. have the glary the residual The district court should within this in the first instance. nity to decide Prater’s sentence vacate We therefore Mosley, 575 F.3d at 608. See court to to allow the district and remand Pra- categorize the crimes how to consider b have sometimes convicted of. We ter was analyzing prior decisions state Our own to violate the possible it is “[i]f said that we support laws decision constitute a way in a would statute Coleman, 655 reach. In States v. way that would of violence and crime (6th Cir.2011), held that con- F.3d 480 we indictment, not, may consider the the court burglary and at- victions for to deter- or similar documents guilty plea, under Ohio tempted third-degree burglary they necessarily establish mine whether under the qualified as violent felonies law Gibbs, conviction.” the nature of law Id. at 483. The Ohio residual clause. added). (emphasis In 626 F.3d at 352 occupied to “an structure or applied decisions, light of recent Court oc- separately separately ... a secured or right. not clarify quite we this is occupied cupied portion of an structure.” always hypothesize unusual cases “One can on the Id. at 482. Our decision rested violent prototypically in which even a ‘occupied of an “burglary conclusion that might present genuine risk of crime injury James, physical a risk of structure’ creates injury.” 550 U.S. at by generic posed that is similar to the risk clarify inquiry that the is not 1586. We too with our burglary.” for a Id. at 480. So possible whether it is defendant (in of the in- posed by burglary building afraid of the dark but because 11. The risk of sense) particularly occupants acute be- would be probability the traditional creased possibility occupant and, thus, will cause of the that an off-guard by asleep caught intrud- surprised by burglar caught and off- maligni- explained, "[T]he ers. As Blackstone very guard definition of and defenseless. burglary] ty the offence does so [of of prem- burglary law rested on this at common dark, being properly its done in the arise from above, burglary at common law ise. As noted creation, night; when all at the dead of dwelling breaking entering was the rest; sleep prey, when except beasts of are at nighttime with the house of another in the owner, and rendered his has disarmed the felony therein. The intent to commit Blackstone, 4 William castle defenseless.” required "nighttime” element was not be- *224. Commentaries eighteenth-century English jurists were cause analysis fourth-degree burglary Lynch chiefly of under concerned whether attempt- Ohio law. That offense constituted a burglary ed could serve as a predicate, an “requires “crime of violence” because it issue that the court felt by was controlled that the in trespass defendant the ‘habi court, again, James. The failed to apply person” tation’ of another and because it categorical modified approach to each a recipe precisely “sets forth for the kind statutory alternative form of attempted surprise confrontation whose risk of third-degree burglary. The court ac- injury physical underlay Supreme knowledged, in passing, that “a non-gener- in holding Court’s James.” United States ic burglary may ... qualify as a violent (6th Skipper, v. 552 F.3d 492-93 Cir. felony under the statute’s residual provi- 2009). Other decisions have rested on true, sion.” Id. at certainly 171. That is grounds. similar See United States v. Bu but gave the court no explanation of how reau, (6th Cir.1995) 52 F.3d 591-93 why or non-generic burglary crimes of (conviction for attempted Tennessee third- encompassed within bur- degree burglary a predicate was under the glary presented law potential a serious residual applied only clause when statute physical injury risk of comparable to that “the breaking entering into a busi posed by generic burglary. The Second house, outhouse, any ness other house similarly Circuit has held that third-degree another”); Lane, United States v. 909 burglary under New York law is a “crime (6th Cir.1990) (conviction Manual, of violence” under the Guidelines attempted burglary Ohio predicate was a holding but this entirely rested on Andrel- under the residual clause because the bur and, again, lo to apply failed the modified glary statute required trespass “places in categorical approach. United States v. in person actually likely which a to be Brown, (2d Cir.2008) (In 514 F.3d present”). We are aware no case Andrello, light of “we can conclude which this court has held that a divisible that third-degree burglary inherently po- statute, containing an alternative form of ses the same risk” within meaning here, similar to the one at issue violence”); “crime of see also United categorically qualified predicate as a of Hurrell, (2d States v. 555 F.3d 123-24 fense under the residual clause. Cir.2009) (same, third-de- persuaded by contrary We are not re gree burglary). The Third Circuit has by sults reached appeals. other courts of accepted the holdings Second Circuit’s case, In a 1993 the Second Circuit deter Lynch Andrello and without considering third-degree burglary mined that and at their rationale or examining their founda- tempted third-degree burglary under New Harford, tion. See United States v. categorically York law are violent felonies (3d Cir.2010). Fed.Appx. under the residual clause. United States split only Our decision creates a circuit (2d Andrello, 249-50 Cir. 1993) curiam). very question on the narrow of whether a (per The court failed to conviction for apply categorical approach, the modified categorically New York law is one, treat violent the offense as a divisible purposes. even to for armed-career-criminal acknowledge that the offense en beyond ACCA decisions do not control compassed alternative forms other than generic specific statute burglary. After under consideration James, jurisdiction issuing ruling. Court decided the Second Circuit We have in carefully opinions reaffirmed Andrello United v. considered the of other States (2d Cir.2008). Lynch, 164, circuits, 518 F.3d 170 persua- and we do not find them 518 924(e)(e) § not identical to in argu- [is] 18 U.S.C. they do not address

sive ... of ‘crime of violence’ definition[n] and are inconsistent here raised ments § 4B1.4 Manual].” in Guidelines [the used Supreme Court the approach with this, have Notwithstanding we cmt. n. 1. Descamps. in year last outlined that we decide determined previously “crime of violence” an offense is a Violence” B. “Crime of way in the same as we the Manual under report, presentence “violent an offense is a decide whether court, derived Pra by the district adopted “because both felony” under the ACCA 24 from level of ter’s base offense essentially the same definitions.” share 2K2.1(a)(2), to defendants applies § which Johnson, Gibbs, 6; 626 F.3d at 352 n. see at two ammunition with least possess who 140, (construing 1265 559 U.S. at 130 S.Ct. vio felony for a crime of prior convictions 924(e) by § reference felony’under ‘violent offense. a controlled-substance lence or statutory of ‘crime of vio- definition convictions do that his argues Prater 16). § in 18 U.S.C. lence’ as of violence” qualify “crime[s] Prater Manual. Because the Guidelines not decide whether We need object by failing claim forfeited this considering in Pra the district court erred below, plain it error. we review as “crimes of vio ter’s 385; Vonner, at accord United the Guidelines Manual be lence” under Olano, 725, 731, 507 U.S. 113 States v. have any we hold that error would cause (1993). 1770, L.Ed.2d 508 This 123 A anything S.Ct. but “obvious or clear.” been (1) “to show er requires Prater only “sparing standard occurs finding plain of error (3) (2) clear, 1, that was obvious or ror ly.” Young, States v. 470 U.S. United (4) (1985). rights substantial 1038, affected [his] L.Ed.2d 1 A 105 S.Ct. 84 fairness, integrity, or that affected legal “subject dispute” issue to reasonable reputation judicial proceed public error. Puckett v. plain is not (internal quotation at marks ings.” States, 129, 135, Id. 556 U.S. 129 S.Ct. Olano, 732-36, omitted); (2009). see 507 U.S. at The existence of 173 L.Ed.2d 266 113 S.Ct. 1770. split precludes finding plain “circuit of Williams, error.” United States “crime of The Guidelines Manual defines (6th Cir.1995). that a “crime of provides violence.” It “(1) Here, has the discussion above suffices to violence” is a that: as use, use, confu or threat- indicate that there is considerable element the per- disagreement sion and alone “reason physical against ened use of force —let (2) another, of a which state offenses dispute” son of able —about arson, extortion, under the dwelling, qualify predicates involves use ACCA Manual, especially under explosives, or otherwise involves con- the Guidelines the residual clauses. Since the presents potential duct that a serious risk (and 4B1.2(a). in injury Sykes Court decided Cham physical to another.” Begay clause bers James Manual’s enumerated-offense 2007), multiple it has continued to receive expressly “burglary refers to a dwell- asking it to ing,” petitions certiorari determine whereas the Court’s definition qualify “a offenses as violent “burglary” applies in the ACCA which state-law under the felonies and crimes of violence building Taylor, or structure.” U.S. Derby clauses. See v. United 110 S.Ct. 2143. The Manual states residual — States, U.S. —, felony’ ... that “the of ‘violent definitio[n] (2011) (Scalia, J., dissenting L.Ed.2d 904 was necessarily convicted of committing a certiorari). One felony, from denial Justice— violent Mosley, 575 F.3d at 608. to demonstrate enough reasonable dis- We therefore VACATE the district court’s agreement said that “how [the Court] sentence and REMAND for resentencing —has if granted would resolve these cases [it] opinion. consistent with this subject certiorari would be a fine for a law- betting pool.”

office Id. at 2859. Justice BATCHELDER, ALICE M. Circuit that it is Scalia noted “uncertain how [his] Judge, dissenting. colleagues

lower-court will deal with” the I respectfully dissent two reasons. jurisprudence. Court’s ACCA Ibid. Jus- First, Prater has preserved objec- not “ring tice Scalia would down the curtain on tion that he appeal now raises on to his playing the ACCA farce in federal courts designation as an Armed Career Criminal. throughout the Nation.” Id. Although Prater did particu- make several not, past, have in the We hesitated to objections court, lar to the district none of hold that a qualify state-law offense fails to questioned them whether his New as a crime of violence under the Guidelines qualified as “vio- (re- Mosley, Manual. See 575 F.3d at 605 lent felonies” for purposes of an ACCA officer, sisting obstructing a police enhancement. And I agree with law, under Michigan categorically not majority opinion the “confusion violence). crime of judgment We reserve disagreement,” Maj. Op. at (should specific question on the it ever analysis mars under the ACCA residual circuit) again arise in treating this precludes clause a finding that the district prior New York convictions for third-de- erred, plainly court I would affirm Prater’s gree burglary attempted third-degree sentence.

burglary as “crimes of violence” consti- Second, I affirm would Prater’s sentence present tutes error. For purposes, it suf- preserved specific objec- even had he say plain fices to that it error under tion he now raises. Under the “modified existing law. categorical approach,” the risk of violent confrontation inherent in one set of alter- IV native elements in a statute divisible need concluding district court erred in only “reasonably likely ... in the ordi- third-degree burglary nary approach case” to the level of risk third-degree burglary under New York generic burglary. inherent Because categorically law constitute violent felonies each set of alternative elements New 924(e). remand, On the district York’s statute en- may government court afford the op- compasses risks similar to generic those of portunity to offer into the record appropri- burglary, I would affirm Prater’s sentence. Shepard ate documents. The district only should consider the limited class I. Shepard documents. It should also fo- objection to his Presentence In- inquiry underly- cus its “not the facts [on] (“PSR”) vestigation Report states: convictions,” ing Descamps, 133 S.Ct. at but on Douglas gives the elements of Defendant Paul Prater the version of the crime objections for which Prater notice of his to the Presen- (the “PSR”) was convicted order Investigation Report determine tence “necessarily objects whether Prater admitted” or issued this case. Mr. Prater objection. his no basis for provided he Armed Career but as an designation to his 924(e) object; he also do more than Prater must § and U.S.C. under 18 Criminal objec- grounds “the for provide must Mr. states that § 4B1.4. The PSR USSG 51(b). The first Fed.R.Crim.P. tion.” as an Armed Career qualifies Prater “consti- its own—does not paragraph following result of the as a Criminal —on objection,” sufficiently articulated (1) 19, tute February 1980—At- convictions: for his “the true basis provide nor does it Degree on Janu- 3rd tempted Burglary Bostic, States ¶ 371 objection.” United (2) (PSR 26); February at ary (6th Cir.2004) (internal quo- on Robbery Degree 3rd 1988— omitted). ¶ (3) (PSR tation marks 30); at Feb- March Degree 3rd on Burglary ruary 1988— “objects that he to When Prater stated ¶ (4) (PSR 31); and at October an Armed Career Crim- designation his as Attempted Burglary March 2000— inal,” majority’s reading, “[t]his under the (PSR 7, 1999 on November Degree 3rd objected Prater only can mean that ¶ 32). he did not be- report because presentence arguments relies on the Mr. Prater 922(g) that he ... section ‘violate[d] lieve raised on this issue. Some previously and Code] of the States [Title are dealing with this issue pleading by any convictions previous has three In 51 and 65 in the record. documents Maj. felony....’” ... for violent summary, prior pleadings dealt with argue But Prater could Op. at 506. —and 1) relating to: arguments Prater’s actually argued para- in the second has rights that his under New contention 922(g) § graph he has not violated —that merely suspended, law had been 922(g) is unconstitutional. Pra- revoked, or had otherwise been re- designation any challenge ter could his under the rights and Prater’s stored unconnected to wheth- number of reasons Amendment to the United States Second convictions are vio- previous er his three 2) Constitution; that the the contention Thus, objection an to his lent felonies. conviction un- charging statute allowed be construed au- “designation” should not liability without a der a strict standard tomatically objection to his state-law knowledge or intent and was required as violent felonies. Prater “ob- (3) broad; vague overly he jected],” paragraph but in the first punishment Armed Career Criminal was objection. Be- provided no reason for his Eighth excessive and a violation of his guess to the reasons for cause we are left specific rights Amendment objection, objection was not Prater’s facts of this ease. particular “clearly paragraph the first made” and objection to the PSR is insuffi- majority opinion that “[a]l- reasons should not preserve cient to his claim. We paragraph the second of Prater’s though Pra- sentence for a reason vacate Prater’s objection statement discusses additional never raised the district ter himself issues, barely, paragraph, the first albeit court. violent-felony preserves Prater’s properly Maj. Op.

claim.” at 506. paragraph of Pra- Interpreting the first however, objection light ter’s statement majority acknowledges, As the further undermines the paragraph second objecting to a court’s action is not itself “arguments majority’s conclusion. The Looking to a claim. preserve sufficient Prater relies previously Prater raised” on which solely paragraph, at the first ob- terms, in his first and second motions jected designation general appear argued dismiss.1 He that the strict liabili- violent felonies for the first ap- time on ty nature of the ACCA peal.2 enhancement “is a process,”

violation of due that the ACCA Accordingly, I would review enhancement violates “the Fifth and Sixth plain error the district court’s conclusion protection against Amendments^] [ ] that Prater’s convictions are “violent felo- vagueness,” that the ACCA enhancement nies” within the meaning of the ACCA. Amendment, Eighth violates the and that The provided by reasons the majority his York convictions’ New violate the Sec- opinion holding that the district court ond Amendment. These are the same did plainly by not err concluding that Pra- grounds specifically enumerated in the sec- prior ter’s convictions are “crimes of vio- paragraph ond objection of his statement. apply equally lence” here. opinions As the Nowhere allege did Prater prior illustrate, this case whether a conviction New felony York convictions were not vio- for a state law offense is a “violent fel- Thus, lent felonies. regardless whether on[y]” “subject is to dispute,” reasonable we read the first and paragraph second of States, Puckett v. 129, 556 U.S. objection Prater’s together statement or 135, 1423, 173 L.Ed.2d 266 separately, Prater has not preserved this (2009), meaning the error —if any not—is claim. “plain.” The fact that the Second Circuit has held that New York’s third-degree majority also finds it important to burglary statute categorically qualifies as a note that both probation the officer and violent further precludes a finding the district judge addressed whether plain error. See United States v. Prater’s convictions were violent felonies. Williams, (6th Cir.1995). 53 F.3d 772 elsewhere, majority however, admits ‘government “[i]t is the bears [that] II. proof the burden of regard with to the penalties various it imposed seeks to have Not did the district court plain- not ” under the sentencing guidelines.’ Maj. err, ly however, it did My not err at all. Op. at 512 (quoting United States v. Co disagreement with the opinion majority wart, (6th Cir.1996)). 159 arises from its characterization of the Even objection, absent an it was incum scope of risk inherent the two non- upon government bent and the district generic forms of New York’s third-degree court judge to ensure that Prater’s burglary statute. Our cases demand a convictions were qualifying predicate of permissive approach more compar- when fenses. The fact that the district court ing alternative generic elements to their concluded that Prater’s convictions were form. required We are to assess the risk violent felonies does not mean that Prater inherent “in ordinary ease” where the question can now they qualify as elements present. are United States v. 1. Prater relied "previously jections on these present cogent argument same no objections during sentencing raised” col- Instead, contrary. the defendant summari- loquy too. ly alludes to attacks on his previously rejected that have by been this judge’s To the extent that the district court arguments regard- court. The defendant's relevant, judge’s statements are order overbreadth, ing vagueness, restoration of overruling objections Prater's to the PSR de- rights, Eighth and the Second objections scribes Amend- as follows: Therefore, already ments have by been addressed properly desig- the defendant this is nated an armed career criminal. His ob- court and will not be discussed further. 522 offense. Cir.2009). underlying state (6th elements 493

Skipper, nonetheless, can, assist in courts Relevant of an an element itself be “A risk need not plain by covered describing conduct part as considered in order offense alternative first the statute. The terms by which ‘ordinary case’ hypothetical For in- places. array a wide covers meas- dangerousness the offense’s department stance, “building” includes the risk enough that .... It is instead ured cus- from which “storage trailer” store’s ordinary arise in reasonably likely to items, large see Peo- pick up tomers could are elements themselves where the case Wandell, 285 A.D.2d ple v. in the The risk involved Id. present....” (2001); passenger N.Y.S.2d third-degree bur- of New commission Marino, A.D.2d car, People v. train see kind “exactly the not be same need glary (1994); or a van N.Y.S.2d burglary. generic of risk” involved primarily company by a “construction used analysis is to this the risk relevant And tools,” workers, transport materials confron- of a violent merely possibility Mincione, 66 N.Y.2d 499 People v. see the in or around tation with someone 489 N.E.2d N.Y.S.2d States, 495 Taylor v. United building. (1985). not is restricted This alternative L.Ed.2d 575, 588, 110 S.Ct. U.S. likely are to people be places to “where risk of (1990), emphasizes the also Even a food Maj. Op. at 515. found.” per- “some other with violent confrontation a classroom or mobile home used as truck investigate.” comes to son who a few hours each occupied only likely is majority for the Yet this is sufficient day. third-de- form of The first alternative confron- the risk of violent to conclude knowingly entering gree burglary is sufficiently to risk is similar tation water- unlawfully in a vehicle or remaining generic burglary. in inherent per- lodging overnight craft used for concludes that majority then But carrying on sons, by persons for or used form the second alternative elementary therein, or used as business entering or remain- burglary knowingly Law N.Y. Penal secondary school. See — motor unlawfully in an enclosed truck ing 140.00(2). be- 140.20, majority The §§ 140.20, trailer, §§ see or motor-truck lieves that 140.00(2) that it requirement no —contains entry encompasses the offense unlawful business, or school- “lodging, be used not a recreational houseboat but of a “is a violent confrontation ing,” the risk of a recre- canoe, truck but not of a food less,” and thus Prater’s con- significantly used of a mobile home seaplane, ational Maj. Op. must be vacated. viction By not a school bus. a classroom but as is specific requirement of this The absence places application to restricting its however, irrelevant, ordinary if in the case found, likely are to people where during likely to arise risk is a similar statute, applied burglary York’s New motor truck or an enclosed burglary of watercraft, sufficiently is to vehicles and Skipper, trailer. See motor-truck generic burglary. similar 140.00(2), §in Although undefined at 493. majori- Although the Maj. Op. at 514-15. a commercial generally truck is a motor conclusion, it unnec- the correct ty reaches See, transport cargo. e.g., used to vehicle conduct scope of the essarily (“The restricts Law term ‘mo- Transp. N.Y. by this alternative. contemplated in article shall be as used this tor truck’ us to categorical approach any directs and commer- modified to mean include deemed offense,” used for the and of the cial vehicle held analyze the “elements motor and goods, wares mer- transportation courts have construed how relevant chandise for hire or for a pur- Despite business acknowledging that the modified pose, pursuant regulations to the rules and categorical approach is the ap- correct commissioner.”)- Motor trucks of- proach, majority opinion surveys the trailers, ten are attached to motor-truck concludes, caselaw and “We are aware of many sleeper even have compart- no case which this court has held that a may ments. A motor truck likely be less statute, divisible containing an alternative occupied to be than a building, but is a form of burglary similar to the one at issue especially motor considering its truck — here, categorically qualified predicate as a cargo likely to be occupied than a —less offense under the residual Maj. clause.” truck, car, passenger food rail or mobile Op. at 517. But three sentences later the And, home used as a classroom? majority opinion acknowledges that United not, occupied or can we conclude that the Andrello, (2d States v. 249-50 risk of violent confrontation with one who Cir.1993) curiam) (per just that, did investigates in progress is yet it correctly dismisses Andrello somehow less where a truck in- motor “failing] apply the modified categorical majority opinion volved? The provides lit- approach.” Maj. Op. at 517. As the ma- support tle for answering questions these admits, jority “ACCA decisions do not con- affirmative, yet its decision to beyond trol the specific statute under con- vacate Prater’s entirely sentence relies on jurisdiction sideration in the issuing the risk, these distinctions. typical United, ruling.” Maj. Op. at 517. The modified case, “comparable,” James v. categorical approach, when States, used under the 192, 212, 550 U.S. clause, residual requires an (2007), elements-spe- 167 L.Ed.2d posed by to that cifie houseboat, inquiry. The fact burglary home, of a that no mobile food other court truck, car, and passenger yet train has compa- inquiry use this on a set of posed rable to that by burglarizing a build- elements similar to those at issue here is ing in ordinary meaning.” “its irrelevant. mostly Our cases are unhelpful in con- I respectfully dissent.

ducting this elements-speeific inquiry.

The fact that we held in United States v.

Coleman, (6th Cir.2011), burglary of an “occupied structure” or

“a separately secured or separately occu- SCHEICK, Plaintiff-Appellant, Robert pied portion structure,” occupied of an pre- sented a risk generic similar to that of burglary tells us nothing about the nature SCHOOLS; TECUMSEH PUBLIC Pro posed of the risk by unlawfully entering a Group, fessional Educational Services motor truck. Similarly, finding that tres- LLC, Defendants-Appellees. passing in another, the “habitation” of see Skipper, 492-93, 552 F.3d at or in “places No. 13-1558. in which a person actually or likely to be Appeals, States Court of Lane, present,” see United States v. Sixth Circuit. (6th Cir.1990), involves a risk similar to generic that inherent in Argued: May 2014. whether, does not answer the question Decided and Filed: Sept. instance, trespassing truck, in a food mo- truck, tor or passenger presents rail car

similar risks.

Case Details

Case Name: United States v. Paul Prater

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 2, 2014

Citation: 766 F.3d 501

Docket Number: 13-5039

Court Abbreviation: 6th Cir.