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NINE “VIOLENT CRIME” PREDICATES COME TO NAUGHT
You might remember Victor Stitt from your last anger management class. He was the guy who tried to shove a loaded handgun into his girlfriend’s mouth during a little domestic spat. When a neighbor called the police, Vic decided to man up by running home to mommy. The cops followed, and he finally emerged from his mother’s house to be arrested. Police recovered the gun.
Unsurprisingly, Vic had a record, and so was convicted of being a felon in possession under 18 USC § 922(g)(1). The district court counted nine prior felonies that qualified him for a sentence enhancement under the Armed Career Criminal Act (which only requires three prior crimes of violence or drug offenses). Six of the nine qualifiers were for Tennessee aggravated burglary. The ACCA enhancement qualified Vic for at least 15 years: the court gave him 24.
On appeal, Vic argued that none of his nine convictions qualify as predicates under the ACCA. The government conceded that Johnson v. United States invalidated the violent-felony status of three of his prior offenses, leaving only the six aggravated-burglary convictions at issue. The 6th Circuit, bound by its prior decision in United States v. Nance, upheld the prior burglaries as ACCA predicates.
But then, like the cavalry riding up at the nick of time, came Mathis v. United States. The 6th Circuit granted Vic rehearing to figure out whether Nance was still good law, and earlier this week, it reversed itself, holding aggravated burglary in Tennessee did not qualify as a burglary under the ACCA.
Tennessee defines aggravated burglary as the “burglary of a habitation.” A “habitation” is “any structure . . . which is designed or adapted for the overnight accommodation of persons.” The term “habitation” includes “mobile homes, trailers, and tents,” as well as any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant.”
The Supreme Court has determined that under the ACCA, “generic burglary” means an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Although the Court left “building or other structure” undefined, it confirmed in Mathis that vehicles and movable enclosures (e.g., railroad cars, tents, and booths) fall outside the definitional sweep of “building or other structure.”
The 6th Circuit said that the only wrinkle is “whether a burglary statute that covers vehicles or movable enclosures only if they are habitable fits within the bounds of generic burglary.” The Circuit held that it does not. The Supreme Court has emphasized that a place’s form and nature — not its intended use or purpose — is what determines whether a burglary statute’s locational element is a “building or other structure.”
The government argued that the 6th should follow the Model Penal Code and the statutes of most states, which include movable structures like boats and cars within the sweep of the burglary statute. The appellate court declined, noting that Congress was specific in using the word “building” in the 1984 generic burglary definition, and the Supreme Court previously found that “nothing in the legislative history suggested that Congress intended in 1986 to replace the 1984 ‘generic’ definition of burglary with something entirely different.”
Until the law is changed, a burglary statute criminalizing burgling of anything in addition to a building is simply too broad to support an ACCA enhancement.
United States v. Stitt, Case No. 14-6158 (June 27, 2017)
– Thomas L. Root