6th Circuit Overrules Self on Michigan ACCA Burglary – Update for October 28, 2016

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burglary160502Reversing its pre-Mathis decisions on the subject, the U.S. Court of Appeals for the 6th Circuit ruled yesterday that the Michigan breaking and entering statute (Mich. Comp. Laws § 750.110) is too broad to serve as a generic burglary predicate for the federal Armed Career Criminal Act.

Under the ACCA, possession of a firearm by a convicted felon who has three prior crimes of violence or serious drug felonies carries a mandatory sentence of at least 15 years. The statute defines a “crime of violence” as including burglary, arson, extortion or use of explosives.

A burglary, however, isn’t necessarily a burglary. The Supreme Court has ruled that the enumerated crimes in the ACCA are intended to be the general, common-law versions of those offenses. Federal courts have struggled over the years, however, to determine whether state statutes that sometimes define a burglary much more broadly than what it originally was, are still predicates for the ACCA. After the Supreme Court’s decision in Mathis v. United States earlier this year – which redefined how such broad statutes are to be parsed – the task has only become harder.

burglary160124For example, at common law, a burglary was defined as the “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Many state statutes, however, defined burglary as included entry into cars, boats, tents, back yards and even vending machines. While states are entitled to adopt such expansive definitions, federal law is not required to heap on additional punishment under the ACCA by including such conduct under the label “burglary.”

Chris Ritchey was caught with a gun, and convicted of being a felon in possession under 18 U.S.C. 922(g). Because he had six prior convictions for breaking and entering under Mich. Comp. Laws § 750.110, he was sentenced under the ACCA to 15 years.

Two days ago, the 6th Circuit reversed the sentence. The Court had previously held that convictions under Mich. Comp. Laws § 750.110 counted for ACCA purposes, but that was before this past summer’s Mathis decision. “Generally,” the Court noted, “a prior published decision binds a later panel of this court unless it is overturned by the Supreme Court or overruled en banc, but departure is also warranted if ‘an inconsistent [ruling] of the United States Supreme Court requires modification of the decision’.”

The Michigan statute held that a “person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not more than 10 years.” Previously, the district court was permitted to look at the state court records to see whether the defendant had broken into a structure – which would count for ACCA purposes – or something else, like a boat, a railroad car or a shipping container (which would not count). But Mathis made clear that unless the list of places one could break into to under the statute were separate elements, courts were not allowed to review state court records to decide exactly what the defendant was said to have done.

Stealing a burger is not an ACCA-qualified "burger-lary."
Stealing a burger is not an ACCA-qualified “burger-lary.”

The Circuit found that “the Michigan Court of Appeals has labeled the statutory alternatives in § 750.110 as ‘examples,’ which cuts against finding that they are, in fact, elements. In defining the elements of breaking and entering, Michigan courts have also treated violations of § 750.110 as a single crime regardless of the particular place broken into.” Plus, the Court observed, the Michigan pattern jury instructions “do not mandate that the trial court identify the particular place at issue. In addition, they indicate that § 750.110’s list is comprised of “type[s] of building[s]” that qualify under the statute—not separate elements of distinct crimes.” Finally, the Court said, the list in § 750.110 of places that can be broken into includes the phrase “or other building,” implying that the list is non-exhaustive, further evidence that the list of places is not intended to be a list of elements of the crime.

Thus, the Circuit said, “only one conclusion is possible under Mathis: a conviction under § 750.110 cannot serve as a predicate offense under ACCA.”

United States v. Ritchey, Case No. 15-2460 (6th Cir., Oct. 26, 2016)


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