United States v. Paul Prater

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0216p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA, ┐

Plaintiff-Appellee, │

│

│ No. 13-5039

v. │

>

│

PAUL DOUGLAS PRATER, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 2:11-cr-00027-1—Robert Leon Jordan, District Judge.

Decided and Filed: September 2, 2014

Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Robert M. Reeves, UNITED

STATES ATTORNEY’S OFFICE, Greeneville, Tennessee, for Appellee.

BOGGS, J., delivered the opinion of the court, in which WHITE, J., joined.

BATCHELDER, J. (pp. 23–28), delivered a separate dissenting opinion.

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OPINION

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BOGGS, Circuit Judge. This case presents the question whether a conviction for third-

degree burglary under New York law is categorically a “violent felony” under 18 U.S.C.

§ 924(e), commonly referred to as the Armed Career Criminal Act (ACCA). A jury convicted

Paul Prater of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).

1

No.13-5039 United States v. Prater Page 2

The district court determined that Prater qualified for an enhanced mandatory minimum sentence

under the ACCA and an increased offense level under the Guidelines Manual. It relied on

Prater’s prior convictions for New York third-degree burglary and attempted third-degree

burglary. The district court held that these offenses categorically qualify as violent felonies.

Because this was error and because the district court did not apply the Supreme Court’s

“modified categorical approach” to determine whether the version of the crimes for which Prater

was convicted qualified as a violent felony, Descamps v. United States, 133 S. Ct. 2276, 2281

(2013), we vacate the district court’s sentence and remand for resentencing.

I

Following a jury trial, Paul Prater was convicted of being a felon in possession of

ammunition, in violation of 18 U.S.C. § 922(g)(1). Prater’s presentence report1 determined that

U.S.S.G. § 2K2.1 provided the base offense level for the sentencing of offenses under 18 U.S.C.

§ 922(g). Because Prater had at least two prior felony convictions for what the Manual refers to

as “crimes of violence,” his base offense level was 24, under § 2K2.1(a)(2). The presentence

report also determined that Prater qualified as an armed career criminal, under 18 U.S.C.

§ 924(e)(1), because he had at least three convictions for a “violent felony” committed on

different occasions. This finding subjected Prater to a mandatory minimum sentence of fifteen

years of imprisonment. § 924(e)(1). It also raised Prater’s offense level to 33, under

§ 4B1.4(b)(3)(B). The presentence report assigned Prater twenty criminal-history points, which

corresponded to a criminal-history category of VI. An offense level of 33 and a criminal-history

category of VI resulted in a guideline range of 235–293 months of imprisonment.

The presentence report identified four predicate convictions qualifying Prater as an armed

career offender under § 924(e)(1): 1) a February 19, 1980, conviction for attempted third-degree

burglary; 2) a February 24, 1988, conviction for third-degree robbery; 3) a February 24, 1988,

conviction for third-degree burglary; and 4) a March 30, 2000, conviction for attempted third-

degree burglary. All four convictions were in Niagara County Court in New York. Prater’s two

February 24, 1988, convictions were for conduct committed on different occasions.

1

The United States Probation Office prepared the report using the 2011 edition of the United States

Sentencing Commission Guidelines Manual.

No.13-5039 United States v. Prater Page 3

Prater objected to the presentence report’s classification of him as an armed career

criminal under 18 U.S.C. § 924(e) and § 4B1.4. He stated that he relied on arguments previously

raised. Prater briefly summarized these arguments: that his right to bear arms had been

suspended, not revoked, under New York law; that § 922(g)(1) was vague and overbroad; and

that the provision of the Armed Career Criminal Act, codified at § 922(e)(1), violated the Eighth

Amendment prohibition on cruel and unusual punishment. The district court overruled Prater’s

objections. It determined that Prater was an armed career criminal because each of his predicate

offenses qualified as a “violent felony” under § 924(e).

On January 8, 2013, the district court held a sentencing hearing. At sentencing, Prater

renewed his previously raised objections but did not raise any new objections. The district court

did not rule on Prater’s objections, stating that it had already done so. It relied on the

presentence report’s determination that Prater’s guideline range was 235–293 months. The

district court also determined that Prater was subject to a 180-month mandatory minimum

sentence. After allocution and a brief reference to the § 3553 factors, the district court sentenced

Prater to 264 months of imprisonment.

On appeal, Prater argues that he lacked the predicate offenses necessary to qualify as an

armed career criminal under § 924(e)(1) and § 4B1.4. He also argues that the sentencing court

erred in deeming these same offenses “crimes of violence” when assigning Prater a base offense

level under § 2K2.1. Specifically, he argues that his New York convictions for third-degree

burglary and attempted third-degree burglary do not satisfy the statutory definition of “violent

felony” under § 924(e)(2)(B) and the Manual’s definition of “crime of violence” under

§ 4B1.2(a).

The issue is important because were Prater not sentenced as an armed career criminal, his

base offense level would have been 24 under § 2K2.1(a)(2)—presuming Prater has the same

criminal history score of 20 and, thus, is in criminal history category VI—and his guideline

range would have been 100–125 months. He also would not be subject to the ACCA’s 180-

month mandatory minimum sentence. If Prater’s challenged convictions qualify as neither

“violent felonies” nor “crimes of violence,” then Prater’s base offense level would be 20 under

No.13-5039 United States v. Prater Page 4

§ 2K2.1(a)(4) and his guideline range would be 70–87 months—well under the 264-month

sentence that Prater received.

II

A

The parties dispute, as an initial matter, our standard of review on appeal. Prater asserts

that we review do novo both whether a prior conviction constitutes a “violent felony” under

§ 924(e) and a “crime of violence” under the Manual. Appellant Br. 8. The government agrees

that review is ordinarily de novo but argues that we must review Prater’s claims only for plain

error because Prater failed to raise his appellate claims below. At issue is whether Prater raised

his current claims before the sentencing court.

To preserve a claim and thus avoid plain-error review, a party must “object[t] to the

court’s action” and also provide “the grounds for that objection.” Fed. R. Crim. P. 51(b). A

party must “apprise the trial judge of the ground now asserted on appeal.” United States v.

Mayes, 512 F.3d 637, 653 (6th Cir. 1975). For a claim of error to “constitute a sufficiently

articulated objection,” a party must “object with that reasonable degree of specificity which

would have adequately apprised the trial court of the true basis for his objection.” United States

v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004); accord United States v. Indiviglio, 352 F.2d 276,

279 (2d Cir. 1965) (en banc) (origins of the reasonable-degree-of-specificity standard). The

requirement that “the specific ground for objection be made clear is to afford the trial judge an

opportunity to remedy any claimed error and to afford the government an opportunity to come

forward with evidence relative to the claim.” United States v. Bryant, 480 F.2d 785, 792 (2d Cir.

1973).

Here, Prater submitted to the probation office a two-paragraph statement objecting to the

presentence report. In the first paragraph, Prater stated that he “objects to his designation as an

Armed Career Criminal under 18 U.S.C. § 924(e) and USSG § 4B1.4.” He proceeded to list the

four predicate offenses relied on by the presentence report, providing the date of conviction, the

offense of conviction, and the date of offense. For each conviction, Prater also cited to the

specific paragraph of the presentence report that classified the conviction as a predicate for

No.13-5039 United States v. Prater Page 5

armed-career-criminal purposes. In the second paragraph, Prater stated that he “relies on the

arguments previously raised on this issue” and referred to prior pleadings.2 Those prior

pleadings do not touch on whether third-degree burglary and attempted third-degree burglary

under New York law constitute “violent felonies.” Prater himself summarized the arguments in

those prior pleadings but did not mention his third-degree-burglary argument in this summary.

Although the second paragraph of Prater’s objection statement discusses additional

issues, the first paragraph, albeit barely, properly preserves Prater’s violent-felony claim. First,

the language of Prater’s sentencing memorandum states that he “objects to his designation as an

Armed Career Criminal under 18 U.S.C. § 924(e) and USSG § 4B1.4.” (emphasis added). This

can only mean that Prater objected to the presentence report because he did not believe that he

was “a person who violate[d] section 922(g) of [Title 18 of the United States Code] and has three

previous convictions by any court . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” § 924(e)(1). Second, the probation officer,

in responding to Prater’s objections in an addendum to the presentence report, felt it important to

state that “[t]he appeals courts have found [Prater’s convictions] to be qualifying convictions as

‘crimes of violence.’” Third, the district court, in denying Prater’s objections, specifically stated

that “each of [Prater’s] violations of New York law is a ‘violent felony’ for purposes of the

ACCA.” It also cited two Second Circuit cases that discuss whether certain crimes constitute

violent felonies and crimes of violence. Thus, the district court clearly understood the basis for

this objection and addressed it. Here, there is no need to consider whether Prater’s objection

“would have adequately apprised the trial court of the true basis of [the] objection,” Bostic,

371 F.3d at 871, because it actually apprised the trial court of such. Because the first paragraph

of Prater’s sentencing memorandum did, in fact, apprise the trial court of the basis for his current

claim on appeal—and thus afforded the sentencing court an opportunity to remedy the claimed

error—we find that Prater’s violent-felony is properly preserved.

2

Specifically, Prater refers to two prior motions to dismiss the indictment. In the first motion, Prater

argued that he lacked the requisite mens rea because he did not know it was illegal for a convicted felon to possess

ammunition and that the ACCA’s 15-year mandatory minimum sentence violates the Eighth Amendment. The

district court addressed these arguments and denied the motion. In the second motion, Prater argued that his prior

convictions merely suspended and did not revoke his civil rights under New York law; he also argued that

prohibiting a felon from possessing ammunition violates the Second Amendment. The district court denied this

motion as well.

No.13-5039 United States v. Prater Page 6

The exchange between Prater’s counsel and the district court at sentencing does not affect

this conclusion. At sentencing, the district court asked Prater’s counsel if he had reviewed the

presentence report with Prater. Counsel informed the court that he had “no objections or

complains other than what we previously raised.” (emphasis added). The district court stated it

had “already ruled on [Prater’s] objections.” It was only after noting that the court had

previously addressed Prater’s objections did the court ask Prater’s counsel if he agreed that the

ACCA imposed a 180-month mandatory minimum sentence. Although Prater’s objection to his

designation as an armed career criminal, contained in his objections to the presentence report,

was sparse, the objection was clearly made, as the district court understood Prater’s objection,

addressed it on the merits, and overruled it.

Not so, however, with Prater’s second claim, that the district court erred in determining

his base offense level under § 2K2.1(a)(2), which required finding that he had at least two prior

felony convictions for a “crime of violence.” Nothing in the record could have suggested to the

district court with a “reasonable degree of specificity,” Bostic, 371 F.3d at 871, that a ground for

Prater’s objection was that his prior convictions did not constitute “crimes of violence” under

§ 4B1.2(a). We, therefore, review Prater’s crime-of-violence claim for plain error.

B

Because Prater’s violent-felony claim is preserved, we review de novo the district court’s

legal conclusions underlying its application of the armed-career-criminal adjustment under

§ 4B1.4 and of the mandatory minimum sentence under § 924(e)(1). See United States v. Bolds,

511 F.3d 568, 579 (6th Cir. 2007). Because Prater did not preserve his crime-of-violence claim,

it is forfeited, and we review it for plain error. United States v. Vonner, 516 F.3d 382, 385 (6th

Cir. 2008) (en banc).

III

The Guidelines Manual instructs sentencing courts, when calculating a defendant’s

guideline range, to determine the offense-guideline section applicable to the offense of

conviction. § 1B1.1(a)(1). The presentence report, adopted by the district court without change,

correctly determined that § 2K2.1 is the guideline section applicable to convictions under

No.13-5039 United States v. Prater Page 7

18 U.S.C. § 922(g). See U.S.S.G. app A. This section assigns an offense level for defendants

convicted of unlawful possession of ammunition. After a sentencing court determines the

appropriate offense-guideline section, the Manual instructs the court to determine the base

offense level. § 1B1.1(a)(2). Section 2K2.1(a) specifies base offense levels based on the nature

of a defendant’s offense. The presentence report correctly determined that defendants receive a

base offense level of 24 if they possess ammunition as a felon with at least two prior convictions

for either a crime of violence or a controlled-substance offense. § 2K2.1(a)(2). The presentence

report noted that Prater had prior felony convictions for attempted third-degree burglary and for

third-degree robbery. In assigning Prater a base offense level of 24 under § 2K2.1(a)(2), the

presentence report necessarily concluded that these prior convictions constituted “at least two

felony convictions of . . . crime[s] of violence.” § 2K2.1(a)(2). On appeal, Prater identifies this

conclusion as error and argues that his prior convictions do not qualify as “crimes of violence.”

After a sentencing court determines a defendant’s base offense level, it must determine

applicable adjustments based on criminal history. § 1B1.1(a)(6). These include whether a

defendant qualifies as what the Manual refers to as a “career offender” or an “armed career

criminal.” §§ 4B1.1, 4B1.4. In Prater’s case, the presentence report determined that he met the

Manual’s definition of “armed career criminal” because he was “subject to an enhanced sentence

under the provisions of 18 U.S.C. § 924(e).” § 4B1.4(a). Consequently, the presentence report

adjusted Prater’s offense level upward to level 33. Prater identifies this adjustment as error

because, he argues, he did not qualify as an armed career criminal under § 4B1.4(a) and, thus,

also under § 924(e).

Because we review Prater’s armed-career-criminal claim de novo and his crime-of-

violence claim only for plain error and because case law treats the two terms similarly, we first

address whether Prater properly qualified as an armed career criminal.

A. “Armed Career Criminal” and “Violent Felony”

Prater’s total offense level of 33 derived from § 4B1.4, which provides an offense-level

adjustment for defendants whose criminal history qualifies them as “armed career criminals.”

The Manual’s definition of “armed career criminal” incorporates a standard provided by statute.

No.13-5039 United States v. Prater Page 8

A defendant is an “armed career criminal” for § 4B1.4 purposes if he “is subject to an enhanced

sentence under the provisions of 18 U.S.C. § 924(e).”

Section 924(e), in turn, subjects defendants convicted under § 922(g) to an enhanced

mandatory minimum sentence of fifteen years if they have at least three prior convictions for “a

violent felony or a serious drug offense, or both, committed on occasions different from one

another.” § 924(e)(1). This case concerns what constitutes a “violent felony” under § 924(e)(1),

which determines whether a defendant is subject to § 4B1.4’s adjustment as an armed career

criminal. Prater argues that his New York convictions for third-degree burglary and attempted

third-degree burglary do not constitute “violent felonies” under § 924(e).

The statute itself provides a definition of “violent felony.” A “violent felony” is any

crime punishable for a term greater than one year that “[1] has as an element the use, attempted

use, or threated use of physical force against the person of another; or [2] is burglary, arson, or

extortion, involves use of explosives, or [3] otherwise involves conduct that presents a serious

potential risk of physical injury to another.” § 924(e)(2)(B).

Prater’s presentence report, adopted by the district court, determined that Prater had four

prior New York convictions that serve as predicate offenses for armed-career-criminal purposes.

They are: 1) a February 19, 1980, conviction for attempted third-degree burglary; 2) a February

24, 1988, conviction for third-degree robbery; 3) a February 24, 1988, conviction for third-

degree burglary; and 4) a March 30, 2000, conviction for attempted third-degree burglary.3

Prater does not dispute that the third-degree-robbery conviction is a predicate offense. At issue

is whether he has two more—i.e., whether third-degree burglary and attempted third-degree

burglary, under New York law, are “violent felonies.”

Under New York law, “[a] person is guilty of burglary in the third degree when he

knowingly enters or remains unlawfully in a building with intent to commit a crime therein.”

N.Y. Penal Law § 140.20. A “building” includes “its ordinary meaning” and also “any structure,

3

The district court adopted the presentence report without change. But in overruling Prater’s objection that

his prior convictions did not qualify him as an armed career criminal, the district court appears to have relied only on

the latter three convictions. It did not mention the February 19, 1980, conviction for attempted third-degree

burglary.

No.13-5039 United States v. Prater Page 9

vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on

business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an

inclosed motor truck trailer.” § 140.00(2).

This statute does not “ha[ve] as an element the use, attempted use, or threatened use of

physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); cf. Johnson v. United

States, 559 U.S. 133 (2010) (interpreting the ACCA’s “physical-force clause”). We determine,

then, whether the statute falls within the Armed Career Criminal Act’s “enumerated-offense

clause”—i.e., “is burglary, arson, or extortion, involves use of explosives”—or whether the

statute falls within the act’s “residual offense”—i.e., “otherwise involves conduct that presents a

serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii).

1. The Enumerated-Offense Clause

A prior conviction qualifies as an ACCA predicate offense if it “is burglary, arson, or

extortion, involves use of explosives.” § 924(e)(2)(B)(i). “To determine whether a past

conviction is for one of those crimes,” courts employ the “categorical approach,” in which they

“compare the elements of the statute forming the basis of the defendant’s conviction with the

elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v.

United States, 133 S. Ct. 2276, 2281 (2013). “The prior conviction qualifies as an ACCA

predicate only if the statute’s elements are the same as, or narrower than, those of the generic

offense.” Ibid.

The word “burglary” in § 924(e) is a term of art. The Supreme Court has determined that

“burglary” does not mean “whatever the State of the defendant’s prior conviction defines as

burglary.” Taylor v. United States, 495 U.S. 575, 580, 590–92 (1990). Nor does it simply carry

its definition at common law: “the breaking and entering of the dwelling house of another in the

nighttime with the intent to commit a felony.” Id. at 580 n.3, 592–96. What is determinative in

deciding whether a crime qualifies is whether it “ha[s] certain specified elements, not by

[whether it] happened to be labeled ‘burglary.’” Id. at 588.4 The Supreme Court defined

4

To the extent relevant, we note that a prior version of the ACCA included a definition of “burglary.” See

Taylor, 495 U.S. at 581. Congress omitted the definition when it amended the statute. See id. at 582. The Supreme

Court suggested that this “may have been an inadvertent casualty of a complex drafting process.” Id. at 589–90.

The Court has already meticulously provided the legislative history of the statutory term “burglary,” id. at 581–90,

No.13-5039 United States v. Prater Page 10

“burglary” by reference to “the generally accepted contemporary meaning of [the] term” and to

“the criminal codes of most States.” Id. at 596, 598. It concluded that “burglary,” as used in

§ 924(e), is a crime that has “the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a crime.” Id. at 599. The Supreme

Court refers to this crime as “generic burglary.” Descamps, 133 S. Ct. at 2283. This definition

does not require that a burglary statute have as an element that a person be armed, that a building

be occupied, or that force be involved. See id. at 597.

Certain penal laws are what the Supreme Court calls “divisible” offenses because they

“se[t] out one or more elements of the offense in the alternative.” Descamps, 133 S. Ct. at 2281.

When a statutory code “list[s] potential offense elements in the alternative,” it “renders opaque

which element played a part in the defendant’s conviction.” Id. at 2283. The Court gave, as an

example of a “divisible” statute, one “stating that burglary involves entry into a building or an

automobile.” Id. at 2281.

Under this understanding, third-degree burglary under New York law is a divisible

offense because it “comprises multiple, alternative versions of the crime.” Id. at 2284; see

United States v. Covington, 738 F.3d 759, 764 (6th Cir. 2014) (Michigan prison-escape statute

divisible under Descamps because it “lists several, alternative ways to violate the statute”);

United States v. Hockenberry, 730 F.3d 645, 669 (6th Cir. 2013) (Pennsylvania burglary statute

divisible under Descamps because it “lists alternative elements in the statutory text”). A person

commits third-degree burglary in New York when he “knowingly enters or remains unlawfully”

in “any structure, vehicle, or watercraft . . . or an inclosed motor truck, or an inclosed motor

truck trailer.”5 §§ 140.20, 140.00(2) (emphasis added). The offense is not rendered an

“indivisible” statute—one “not containing alternative elements,” Descamps, 133 S. Ct. at 2281—

simply because the prohibitory provision itself, § 140.20, uses only the word “building.” Under

New York law, the statutory definition of “building” in § 140.00(2) is “applicable” to the

and so we need not repeat it here, see id. at 603 (Scalia, J., concurring in part and concurring in the judgment)

(“discern[ing] no reason for devoting 10 pages of [the] opinion to legislative history, except to show that we have

given this case close and careful consideration” and urging that “[w]e must find some better way of demonstrating

our conscientiousness.”).

5

Watercraft and trucks are kinds of vehicles, but the statute is not redundant because, as explained below, it

only applies to certain kinds of vehicles and watercraft, whereas it applies to all “inclosed motor truck[s]” and

“inclosed motor truck trailer[s].”

No.13-5039 United States v. Prater Page 11

prohibitory provision. § 140.00. A state’s penal code structure does not erase the Supreme

Court’s developed distinction between “divisible” and “indivisible” offenses by distributing

elements across various statutory provisions. Whether an offense is “divisible” turns on its

actual elements, Descamps, 133 S. Ct. at 2284–85—not on whether a state provides separate

labels for different elements. To conclude otherwise would mean that the burglary offense

criminalized under New York law would be indivisible in a state that codified its laws like New

York and would be divisible in a state that imported the definition of “building” directly into the

prohibitory provision. It is this exact state-by-state variance that the Court has sought to avoid in

its ACCA jurisprudence. See Taylor, 495 U.S. at 590–92. Third-degree burglary under New

York law, then, is a divisible offense.

In order to conduct the compare-the-elements test when a divisible statute is involved,

courts employ what the Supreme Court has “labeled (not very inventively) the ‘modified

categorical approach.’” Decsamps, 133 S. Ct. at 2281. This approach is a two-step process.

First, courts determine whether “one alternative (say, a building) matches an element in the

general offense, but [an]other (say, an automobile) does not.” Ibid. (parentheticals in original).

If that is the case, courts can “consult a limited class of documents, such as indictments and jury

instructions, to determine which alternative formed the basis of the defendant’s prior

conviction.” Ibid. Only then can the court “do what the categorical approach demands: compare

the elements of the crime of conviction . . . with the elements of the generic crime.” Ibid.

Here, whether the elements of New York third-degree burglary match those of generic

burglary depends on which alternative version of the crime is used. The alternative of third-

degree burglary of a building, with its “ordinary meaning,” matches the generic offense.

§ 140.00(2). But the alternatives of third-degree burglary of a vehicle, watercraft, inclosed motor

truck, and inclosed motor-truck trailer do no match the generic offense. It makes no difference

that New York has defined “building” to mean vehicles and watercraft. The Court’s use of

“building” in its definition of generic building rested on “generic, contemporary meaning.”

Taylor, 495 U.S. at 598. States cannot bring offenses within the Court-defined “generic crime”

by giving terms idiosyncratic meaning. A state may presumably, if it chooses, define the term

No.13-5039 United States v. Prater Page 12

“entry into or remaining in” to mean “gazing upon” in its burglary statute; but the elements of

that burglary statute would not match those of “generic burglary.” So too here.6

Because one alternative of New York third-degree burglary does not match “generic

burglary,” the modified categorical approach calls for looking beyond the mere fact of

conviction. Descamps, 133 S. Ct. at 2281. The sentencing court may consult a limited amount

of material to determine the nature of a prior conviction: “the statutory definition, charging

document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by

the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16

(2005). Here, the district court did not look to any Shepard materials to determine whether

Prater’s prior burglary convictions were for burglary of a “building or structure.” Taylor,

495 U.S. at 495. The district court, in overruling Prater’s objections to counting his prior

convictions as predicate offenses, noted that it “has before it three certificates of disposition.”

These certificates of disposition were not part of the record below, nor are they part of the record

on appeal.7 Copies of these “certificates of disposition” provided to this court by Prater,

however, appear to show only the mere fact that Prater was convicted of third-degree burglary,

third-degree robbery, and attempted third-degree burglary. See Appellant App. 22–24. These

documents, even if they were part of the record, are insufficient for the district court to conclude

that Prater was convicted of an offense with elements “the same as, or narrower than, those of

the generic offense.” Descamps, 133 S. Ct. at 2281. In light of the record before the district

court, third-degree burglary and attempted third-degree burglary do not qualify as “violent

felonies” under the ACCA’s enumerated-offense clause.

The government asserts that “undisputed facts in the record indicate [Prater] actually

burglarized a building in the traditional sense, and thus committed a generic burglary.” Appellee

Br. 10. The government cites and quotes Prater’s presentence report. Prater’s presentence report

6

Additionally, the Supreme Court has repeatedly treated a burglary statute criminalizing burglary of a

building or a vehicle as the quintessential example of a case where one alternative form of the crime does not match

generic burglary. See Descamps, 133 S. Ct. at 2281, 2284; Chambers v. United States, 555 U.S. 122, 126 (2009);

Shepard v. United States, 544 U.S. 13, 15–16 (2005); Taylor, 495 U.S. at 602.

7

The government asserts that the record contains “one Shepard document—a New York certificate of

disposition—for Defendant’s prior third-degree burglary conviction.” Appellee Br. 9. It cites to entry 90 on the

district-court docket. That entry contains the district court’s order overruling Prater’s objections, which references

the court “ha[ving] before it three certificates of disposition,” but it does not contain the certificates of disposition.

No.13-5039 United States v. Prater Page 13

is not a proper Shepard document because Prater did not assent to its factual statements. See

Shepard, 544 U.S. at 16. Moreover, the government fundamentally misconstrues how the

modified categorical approach works. The Supreme Court is emphatic that sentencing courts, in

conducting this analysis, must not focus on the facts in the record and the acts that a defendant

actually committed. See Descamps, 133 S. Ct. at 2283, 2286–91. “The key, [the Court has]

emphasized, is elements, not facts.” Id. at 2283. It does not matter if “the defendant actually

committed the offense in its generic form.” Ibid. (emphasis added). What is determinative is

whether a defendant “has three ‘prior convictions’ for a violent felony—not [whether] a

defendant . . . has thrice committed such a crime.” Id. at 2287. “[T]urn[ing] an elements-based

inquiry into an evidence-based one . . . has no roots [in the Court’s] precedents . . . [and] subverts

those decisions, conflicting with each of the rationales supporting the categorical approach and

threatening to undo all its benefits.” Ibid. To be clear: the proper analysis entails comparing

“the elements of the crime of conviction . . . with the elements of the generic offense.”

Descamps, 133 S. Ct. at 2281 (emphasis added). Reliance on proper Shepard documents alone

may make this inquiry difficult or impossible, “[b]ut absence of records will often frustrate

application of the modified categorical approach.” Johnson, 130 S. Ct. at 145.

Additionally, the government defends its failure to present Shepard evidence by stating

that “it had no incentive to obtain that documentation previously given [Prater’s] agreement that

his prior convictions were ACCA predicates.” Appellee Br. 10. This conception of the

government’s obligation at sentencing is backwards. It is the “government [that] bears the

burden of proof with regard to the various penalties it seeks to have imposed under the

sentencing guidelines.” United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996). Prior to

sentencing, the government filed a sentencing memorandum in which it affirmatively concurred

in the presentence report’s recommendation that Prater’s total offense level was 33 under §

4B1.4(b)(3)(B). The “incentive” the government had was that it bore the burden to justify

sentencing Prater as an armed career criminal. Prater objected to his designation as an armed

career criminal, and the government did not respond. Additionally, the government points to

nowhere in the record where Prater “agree[d] that his prior convictions were ACCA predicates.”

Appellee Br. 10. Prater, in fact, objected to this point.

No.13-5039 United States v. Prater Page 14

2. The Residual Clause

a

A prior conviction qualifies as a “violent felony” under the ACCA’s “residual clause” if

it “involves conduct that presents a serious potential risk of physical injury to another.”

§ 924(e)(2)(B)(ii). We must determine whether third-degree burglary and attempted third-degree

burglary under New York law meet this criterion. At the outset, we note that the Supreme Court

has held that the residual clause does not categorically exclude all attempt offenses. James,

550 U.S. at 200.

Just as courts employ the categorical approach to determine whether a prior conviction

falls within the enumerated-offense clause, Descamps, 133 S. Ct. at 2281, so too must they

employ the categorical approach to determine whether an offense qualifies as a predicate under

the residual clause.8 James, 550 U.S. at 202; accord United States v. Gibbs, 626 F.3d 344, 352

(6th Cir. 2010). The inquiry is the same: it involves comparing the elements of the prior offense

of conviction with the element contained in the residual clause. Courts must ask “whether the

elements of the offense are of the type that would justify its inclusion within the residual

provision, without inquiring into the specific conduct of the particular offender.” James,

550 U.S. at 202. Here, the “pivotal question” is whether knowingly entering or remaining

unlawfully in a “building”—an ordinary building, a vehicle, a watercraft, an inclosed motor

truck, or an inclosed motor-truck trailer—with the intent to commit a felony therein is conduct

that presents a serious risk of physical injury to another. Id. at 203.

As explained above, third-degree burglary under New York law is a divisible offense.

Consider three alternative versions of the elements of the offense provided by statute. One

version requires breaking into a building in the ordinary sense (i.e., “generic burglary”). Another

8

Since the Supreme Court decided Descamps last year, we have repeatedly applied the modified categorical

approach to divisible statutes when conducting a residual-clause analysis. See United States v. Mitchell, 743 F.3d

1054, 1060–67 (6th Cir. 2014) (convictions under Tennessee robbery statutes are categorically violent felonies

under the residual clause); United States v. Covington, 738 F.3d 759, 764–65 (6th Cir. 2014) (convictions under

Michigan prison-escape statute are not categorically violent felonies under the residual clause); United States v.

Denson, 728 F.3d 603, 608–10 (6th Cir. 2013) (convictions under Ohio inciting-violence statute are not

categorically crimes of violence under the residual clause but defendant’s conviction a crime of violence in light of

Shepard documents); United States v. Johnson, 530 F. App’x 528, 532–33 (6th Cir. 2013) (convictions under

Tennessee robbery statutes are not categorically violent felonies under the residual clause but defendant’s robbery

conviction a violent felony in light of Shepard documents).

No.13-5039 United States v. Prater Page 15

requires breaking into a vehicle or watercraft used for lodging, business, or schooling. A third

version requires breaking into an inclosed motor truck or an inclosed motor-truck trailer,

regardless of how those objects are used.

The Supreme Court has already determined that generic burglary presents an “inherent

potential for harm to persons.” Taylor, 495 U.S. at 588. “The fact that an offender enters a

building to commit a crime often creates the possibility of a violent confrontation between the

offender and an occupant, caretaker, or some other person who comes to investigate.” Ibid. The

Court has also determined that attempted generic burglary presents the same risk: “[i]nterrupting

an intruder at the doorstep while the would-be burglar is attempting a break-in creates a risk of

violent confrontation comparable to that posed by finding him inside the structure itself.” James,

550 U.S. at 203.

The Supreme Court has not answered whether breaking into either a vehicle or watercraft

used for lodging, business, or schooling or breaking into an inclosed motor truck or motor-truck

trailer presents the same risk as generic burglary. The Court has, however, provided a

framework. In James, the Court considered whether a prior conviction for attempted burglary

under Florida law qualified as a predicate under the residual clause. Id. at 195. The Florida law

encompassed generic burglary and also, similar to the New York law, provided the alternative

offense element of unlawful entry onto the curtilage of a dwelling. Id. at 212. The Court first

held that attempted generic burglary fell within the residual clause. Id. at 211–12. The Court

then considered whether attempted unlawful entry of the curtilage would also fall within the

residual clause. Id. at 212. At the outset, the Court acknowledged that “the inclusion of the

curtilage takes Florida’s underlying offense of burglary outside the definition of ‘generic

burglary.’” Ibid. To resolve this question, the Court asked whether the “risk posed by an

attempted entry of the curtilage is comparable to that posed by the attempted entry of a

structure.” Ibid.9 Our, inquiry, then is whether the risk posed by breaking into a vehicle or

watercraft used for lodging, business, or schooling or breaking into an inclosed motor truck or

motor-truck trailer is “comparable” to the risk posed by generic burglary.

9

The answer is yes. James, 550 U.S. at 213.

No.13-5039 United States v. Prater Page 16

Consider first the alternative form of third-degree burglary in New York that has as its

elements knowingly entering or remaining unlawfully in a vehicle or watercraft used for lodging,

business, or schooling. Common sense informs us that vehicles and watercraft differ, in certain

respects, from the ordinary meaning of buildings. Vehicles and watercraft, for instance, may be

mobile, whereas buildings generally are not; vehicles and watercraft may be roofless, whereas

buildings are generally enclosed. But a review of the Supreme Court’s cases suggests that the

salient feature of “building” in the definition of generic burglary is the idea that it is a place

where people live, congregate, or are likely to be found. For example, the Court has said that

burglary of a building entails the possibility of a violent confrontation with an “occupant” or

“caretaker.” Taylor, U.S. at 588. It has also described burglary as “entering onto another’s

property” and described a burglar as an “intruder at the doorstep.” James, 550 U.S. at 204. New

York specifically restricts this alternative form of third-degree burglary to vehicles or watercraft

“used for overnight lodging of persons, or used by persons for carrying on business therein, or

used as an elementary or secondary school.” § 140.00(2). Thus, the offense encompasses

unlawful entry of a houseboat but not a recreational canoe, of a food truck but not a recreational

seaplane, of a mobile home used as a classroom but not a school bus. By restricting its

application to places where people are likely to be found, New York’s burglary statute, as

applied to vehicles and watercraft, is sufficiently similar to generic burglary. The risk posed is

comparable to that of generic burglary.

Now consider the alternative form of third-degree burglary that has as its elements

knowingly entering or remaining unlawfully in an inclosed motor truck or motor-truck trailer.

There is no restriction that the motor truck or motor-truck trailer be used for lodging, business, or

schooling. Consequently, the risk of a burglar encountering another person—and of a “violent

confrontation” ensuing, Taylor, 495 U.S. at 588—is significantly less. Breaking into a motor

truck or a motor-truck trailer of course entails some risk of physical injury to a person, but that

risk is simply not “comparable” in severity or likelihood to the risk posed by generic burglary.

The government maintains that the “risk involved in the commission of a New York

third-degree burglary or attempted third-degree burglary is exactly the same kind of risk as is

involved in the commission of [Taylor’s] generic burglary.” Appellee Br. 12 (emphasis added).

No.13-5039 United States v. Prater Page 17

That assertion is simply not credible. A motor truck is less likely to be occupied than a building,

and burglarizing an average motor truck, let alone a trailer, wherever situated, likely does not

pose the same risk as burglarizing a building.10 The government then asserts that “most of the

‘buildings’ which New York prohibits burglarizing are places where occupants are likely to be

present.” Appellee Br. 14 (emphasis added). Most is not all. We have previously held that even

a single alternative set of elements in a statute that does not fall within the residual clause

prevents a prior conviction from serving as a predicate. See United States v. Mosley, 575 F.3d

603, 607–08 (6th Cir. 2009) (prior conviction for state law applying to a person who “assaults,

batters, wounds, obstructs, opposes, or endangers” a law-enforcement officer did not serve as a

predicate because “obstructs” was a possible element).

The government also argues that breaking into an inclosed motor truck or motor-truck

trailer presents some “risk of a violent confrontation between innocent third-parties and the

burglar.” Appellee Br. 15. But this is not the dispositive inquiry. The question is whether that

risk is “comparable to that posed by . . . entry of a structure.” James, 550 U.S. at 212. It is not.

Just as a crime—i.e., a definite list of given elements—need not present a risk of injury in all

cases to qualify as a violent felony, so too does some possibility of injury not suffice to make a

crime a predicate. See id. at 207. There are, of course, ways of committing even generic

burglary that do not “pose a realistic risk of confrontation or injury to anyone—for example, a

break-in of an unoccupied structure located far off the beaten path and away from any potential

intervenors.” Ibid. But analysis under the residual clause rests on “inherently probabilistic

concepts.” Ibid. “[T]he proper inquiry . . . is whether the conduct encompassed by the elements

of the offense, in the ordinary case, presents a serious potential risk of injury to another.” Id. at

208 (emphasis added). According to the government, “[t]he confrontation that might occur

between the burglar [of a motor truck or motor-truck trailer] and the non-occupant investigator is

no less serious than the confrontation that might occur between the burglar and an occupant of a

structure.” Appellee Br. 15. Although there are strong reasons to doubt this,11 even if the

10

Burglarizing an unoccupied motor truck probably also does not even present the same risk as

burglarizing an unoccupied building, for caretakers and police officers may be more likely to respond to a building

break-in.

11

The risk posed by burglary of a building (in the traditional sense) is particularly acute because of the

possibility that an occupant will be surprised by a burglar and caught off-guard and defenseless. The very definition

of burglary at common law rested on this premise. As noted above, burglary at common law was the breaking and

No.13-5039 United States v. Prater Page 18

government’s assertion is true, it does not show that the risk posed by motor-truck burglary is

comparable in likelihood to that posed by generic burglary. Here, the mere possibility of a

confrontation between burglar and bystander during a break-in of a motor truck or motor-truck

trailer is insufficient to bring this alternative form of third-degree burglary within the residual

clause.

We therefore vacate Prater’s sentence and remand to allow the district court to consider

how to categorize the crimes Prater was convicted of. We have sometimes said that “[i]f it is

possible to violate the statute in a way that would constitute a crime of violence and in a way that

would not, the court may consider the indictment, guilty plea, or similar documents to determine

whether they necessarily establish the nature of the prior conviction.” Gibbs, 626 F.3d at 352

(emphasis added). In light of recent Supreme Court decisions, we clarify that this is not quite

right. “One can always hypothesize unusual cases in which even a prototypically violent crime

might not present a genuine risk of injury.” James, 550 U.S. at 208. We clarify that the inquiry

is not whether it is possible for a defendant to commit a crime in a way that would not be a

violent felony. As the Supreme Court said last year, the sentencing court must “look only to the

fact that the defendant ha[s] been convicted of crimes falling within certain categories, and not to

the facts underlying the prior convictions.” Descamps, 131 S. Ct. at 2286. On remand, the

sentencing court may look to Shepard documents only to consider which category of crime

Prater was convicted of. It may turn out that Prater was convicted of burglary of a building with

its “ordinary meaning” or of a vehicle or watercraft used for lodging, business, or schooling.

The district court should have the opportunity to decide this in the first instance. See Mosley,

575 F.3d at 608.

b

Our own prior decisions analyzing state burglary laws support the decision we reach. In

United States v. Coleman, 655 F.3d 480 (6th Cir. 2011), we held that convictions for third-degree

entering of the dwelling house of another in the nighttime with the intent to commit a felony therein. The

“nighttime” element was required not because eighteenth-century English jurists were afraid of the dark but because

of the increased probability that occupants would be asleep and, thus, caught off-guard by intruders. As Blackstone

explained, “[T]he malignity of the offence [of burglary] does not so properly arise from its being done in the dark, as

at the dead of night; when all creation, except beasts of prey, are at rest; when sleep has disarmed the owner, and

rendered his castle defenceless.” 4 William Blackstone, Commentaries *224.

No.13-5039 United States v. Prater Page 19

burglary and attempted third-degree burglary under Ohio law qualified as violent felonies under

the residual clause. Id. at 483. The Ohio law applied only to “an occupied structure or . . . a

separately secured or separately occupied portion of an occupied structure.” Id. at 482. Our

decision rested on the conclusion that “burglary of an ‘occupied structure’ creates a risk of

physical injury that is similar to the risk posed by generic burglary.” Id. at 480. So too with our

analysis of fourth-degree burglary under Ohio law. That offense constituted a “crime of

violence” because it “requires that the defendant trespass in the ‘habitation’ of another person”

and because it “sets forth a recipe for precisely the kind of surprise confrontation whose risk of

physical injury underlay the Supreme Court’s holding in James.” United States v. Skipper,

552 F.3d 489, 492–93 (6th Cir. 2009). Other decisions have rested on similar grounds. See

United States v. Bureau, 52 F.3d 584, 591–93 (6th Cir. 1995) (conviction for Tennessee

attempted third-degree burglary was a predicate under the residual clause when statute applied

only to “the breaking and entering into a business house, outhouse, or any other house of

another”); United States v. Lane, 909 F.2d 895, 909 (6th Cir. 1990) (conviction for Ohio

attempted burglary was a predicate under the residual clause because the burglary statute

required trespass in “places in which a person is actually or likely to be present”). We are aware

of no case in which this court has held that a divisible statute, containing an alternative form of

burglary similar to the one at issue here, categorically qualified as a predicate offense under the

residual clause.

We are not persuaded by contrary results reached by other courts of appeals. In a

1993 case, the Second Circuit determined that third-degree burglary and attempted third-degree

burglary under New York law are categorically violent felonies under the residual clause.

United States v. Andrello, 9 F.3d 247, 249–50 (2d Cir. 1993) (per curiam). The court failed to

apply the modified categorical approach, to treat the offense as a divisible one, and even to

acknowledge that the offense encompassed alternative forms other than generic burglary. After

the Supreme Court decided James, the Second Circuit reaffirmed Andrello in United States v.

Lynch, 518 F.3d 164, 170 (2d Cir. 2008). Lynch chiefly concerned whether attempted burglary

could serve as a predicate, an issue that the court felt was controlled by James. The court, again,

failed to apply the modified categorical approach to each statutory alternative form of attempted

third-degree burglary. The court acknowledged, in passing, that “a non-generic burglary

No.13-5039 United States v. Prater Page 20

may . . . qualify as a violent felony under the statute’s residual provision.” Id. at 171. That is

certainly true, but the court gave no explanation of how or why the non-generic crimes of

burglary encompassed within the third-degree burglary law presented a serious potential risk of

physical injury comparable to that posed by generic burglary. The Second Circuit has similarly

held that third-degree burglary under New York law is a “crime of violence” under the

Guidelines Manual, but this holding rested entirely on Andrello and, again, failed to apply the

modified categorical approach. United States v. Brown, 514 F.3d 256, 268 (2d Cir. 2008) (In

light of Andrello, “we can only conclude that third-degree burglary inherently poses the same

risk” within the meaning of “crime of violence”); see also United States v. Hurrell, 555 F.3d

122, 123–24 (2d Cir. 2009) (same, for attempted third-degree burglary). The Third Circuit has

accepted the Second Circuit’s holdings in Andrello and Lynch without considering their rationale

or examining their foundation. See United States v. Harford, 370 F. App’x 322, 324 (3d Cir.

2010).

Our decision creates a circuit split only on the very narrow question of whether a

conviction for third-degree burglary under New York law is categorically a violent felony for

armed-career-criminal purposes. ACCA decisions do not control beyond the specific statute

under consideration in the jurisdiction issuing the ruling. We have carefully considered the

opinions of other circuits, and we do not find them persuasive because they do not address the

arguments raised here and are inconsistent with the approach that the Supreme Court outlined

last year in Descamps.

B. “Crime of Violence”

Prater’s presentence report, adopted by the district court, derived Prater’s base offense

level of 24 from § 2K2.1(a)(2), which applies to defendants who possess ammunition with at

least two prior felony convictions for a crime of violence or a controlled-substance offense.

Prater argues that his prior convictions do not qualify as “crime[s] of violence” under the

Guidelines Manual. Because Prater forfeited this claim by failing to object below, we review it

only for plain error. Vonner, 516 F.3d at 385; accord United States v. Olano, 507 U.S. 723, 731

(1993). This standard requires Prater “to show (1) error (2) that was obvious or clear, (3) that

affected [his] substantial rights and (4) that affected the fairness, integrity, or public reputation of

No.13-5039 United States v. Prater Page 21

the judicial proceedings.” Id. at 386 (internal quotation marks omitted); see Olano, 507 U.S. at

732–36.

The Guidelines Manual defines “crime of violence.” It provides that a “crime of

violence” is a felony that: “(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves conduct that presents a serious potential risk of

physical injury to another.” § 4B1.2(a). The Manual’s enumerated-offense clause expressly

refers to “burglary of a dwelling,” whereas the Court’s definition of “burglary” in the ACCA

applies to “a building or structure.” Taylor, 495 U.S. at 599. The Manual states that “the

definitio[n] of ‘violent felony’ . . . in 18 U.S.C. § 924(e)(e) [is] not identical to the definition[n]

of ‘crime of violence’ . . . used in [the Guidelines Manual].” § 4B1.4 cmt. n.1. Notwithstanding

this, we have previously determined that we decide whether an offense is a “crime of violence”

under the Manual in the same way as we decide whether an offense is a “violent felony” under

the ACCA “because both share essentially the same definitions.” Gibbs, 626 F.3d at 352 n.6; see

Johnson, 559 U.S. at 140 (construing ‘violent felony’ under § 924(e) by reference to the statutory

definition of ‘crime of violence’ in 18 U.S.C. § 16).

We need not decide whether the district court erred in considering Prater’s prior

convictions as “crimes of violence” under the Guidelines Manual because we hold that any error

would have been anything but “obvious or clear.” A finding of plain error occurs only

“sparingly.” United States v. Young, 470 U.S. 1, 15 (1985). A legal issue “subject to reasonable

dispute” is not plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). The existence of

a “circuit split precludes a finding of plain error.” United States v. Williams, 53 F.3d 769, 772

(6th Cir. 1995).

Here, the discussion above suffices to indicate that there is considerable confusion and

disagreement—let alone “reasonable dispute”—about which state offenses qualify as predicates

under the ACCA and the Guidelines Manual, especially under the residual clauses. Since the

Supreme Court decided Sykes in 2011 (and Chambers in 2009, Begay in 2008, and James in

2007), it has continued to receive multiple certiorari petitions asking it to determine which state-

law offenses qualify as violent felonies and crimes of violence under the residual clauses. See

No.13-5039 United States v. Prater Page 22

Derby v. United States, 131 S. Ct. 2858 (2011) (Scalia, J., dissenting from denial of certiorari).

One Justice—enough to demonstrate reasonable disagreement—has said that “how [the Court]

would resolve these cases if [it] granted certiorari would be a fine subject for a law-office betting

pool.” Id. at 2859. Justice Scalia noted that it is “uncertain how [his] lower-court colleagues

will deal with” the Court’s ACCA jurisprudence. Ibid. Justice Scalia would “ring down the

curtain on the ACCA farce playing in federal courts throughout the Nation.” Id. at 2860.

We have not, in the past, hesitated to hold that a state-law offense fails to qualify as a

crime of violence under the Guidelines Manual. See Mosley, 575 F.3d at 605 (resisting and

obstructing a police officer, under Michigan law, not categorically a crime of violence). We

reserve judgment on the specific question (should it ever arise again in this circuit) whether

treating prior New York convictions for third-degree burglary or attempted third-degree burglary

as “crimes of violence” constitutes error. For present purposes, it suffices to say that it is not

plain error under existing law.

IV

The district court erred in concluding that third-degree burglary and attempted third-

degree burglary under New York law categorically constitute violent felonies under § 924(e).

On remand, the district court may afford the government the opportunity to offer into the record

appropriate Shepard documents. The district court should consider only the limited class of

Shepard documents. It should also focus its inquiry “not [on] the facts underlying the prior

convictions,” Descamps, 133 S. Ct. at 2287, but only on the elements of the version of the crime

for which Prater was convicted in order to determine whether Prater “necessarily admitted” or

was necessarily convicted of committing a violent felony, Mosley, 575 F.3d at 608. We

therefore VACATE the district court’s sentence and REMAND for resentencing consistent with

this opinion.

No.13-5039 United States v. Prater Page 23

_________________

DISSENT

_________________

ALICE M. BATCHELDER, Circuit Judge, dissenting. I respectfully dissent for two

reasons. First, Prater has not preserved the objection that he now raises on appeal to his

designation as an Armed Career Criminal. Although Prater did make several particular

objections to the district court, none of them questioned whether his prior New York felony

convictions qualified as “violent felonies” for purposes of an ACCA enhancement. And because

I agree with the majority opinion that the “confusion and disagreement,” Maj. Op. at 27, that

mars analysis under the ACCA residual clause precludes a finding that the district court plainly

erred, I would affirm Prater’s sentence.

Second, I would affirm Prater’s sentence even had he preserved the specific objection he

now raises. Under the “modified categorical approach,” the risk of violent confrontation

inherent in one set of alternative elements in a divisible statute need only be “reasonably likely

. . . in the ordinary case” to approach the level of risk inherent in generic burglary. Because each

set of alternative elements of New York’s third-degree burglary statute encompasses risks similar

to those of generic burglary, I would affirm Prater’s sentence.

I.

Prater’s objection to his Presentence Investigation Report (“PSR”) states:

Defendant Paul Douglas Prater gives notice of his objections to the

Presentence Investigation Report (the “PSR”) issued in this case. Mr. Prater

objects to his designation as an Armed Career Criminal under 18 U.S.C. § 924(e)

and USSG § 4B1.4. The PSR states that Mr. Prater qualifies as an Armed Career

Criminal as a result of the following convictions: (1) February 19, 1980 –

Attempted Burglary 3rd Degree on January 7, 1980 (PSR at ¶ 26); (2) February

24, 1988 – Robbery 3rd Degree on March 17, 1985 (PSR at ¶ 30); (3) February 24,

1988 – Burglary 3rd Degree on October 28, 1987 (PSR at ¶ 31); and (4) March 30,

2000 – Attempted Burglary 3rd Degree on November 7, 1999 (PSR at ¶ 32).

Mr. Prater relies on the arguments previously raised on this issue. Some

of the pleading dealing with this issue are documents 51 and 65 in the record. In

summary, the prior pleadings dealt with Prater’s arguments relating to: 1) the

contention that his rights under New York law had been merely suspended, not

No.13-5039 United States v. Prater Page 24

revoked, or had otherwise been restored and Prater’s rights under the Second

Amendment to the United States Constitution; 2) the contention that the charging

statute allowed conviction under a strict liability standard without a required

knowledge or intent and was vague and overly broad; and (3) the Armed Career

Criminal punishment was excessive and a violation of his Eighth Amendment

rights under the specific and particular facts of this case.

The majority opinion reasons that “[a]lthough the second paragraph of Prater’s objection

statement discusses additional issues, the first paragraph, albeit barely, properly preserves

Prater’s violent-felony claim.” Maj. Op. at 6.

As the majority acknowledges, however, objecting to a court’s action is not itself

sufficient to preserve a claim. Looking solely at the first paragraph, Prater objected to his

designation in general terms, but he provided no basis for his objection. Prater must do more

than object; he also must provide “the grounds for that objection.” Fed. R. Crim. P. 51(b). The

first paragraph—on its own—does not “constitute a sufficiently articulated objection,” nor does

it provide “the true basis for his objection.” United States v. Bostic, 371 F.3d 865, 871 (6th Cir.

2004) (internal quotation marks omitted).

When Prater stated that he “objects to his designation as an Armed Career Criminal,”

under the majority’s reading, “[t]his can only mean that Prater objected to the presentence report

because he did not believe that he . . . ‘violate[d] section 922(g) of [Title 18 of the United States

Code] and has three previous convictions by any court . . . for a violent felony . . . .’” Maj. Op.

at 6. But Prater could argue—and actually has argued in the second paragraph—that he has not

violated § 922(g) because § 922(g) is unconstitutional. Prater could challenge his designation for

any number of reasons unconnected to whether his three previous convictions are violent

felonies. Thus, an objection to his “designation” should not be construed automatically as an

objection to his state-law convictions as violent felonies. Prater “object[ed],” but in the first

paragraph he provided no reason for his objection. Because we are left to guess the reasons for

Prater’s objection, the objection was not “clearly made” and the first paragraph of Prater’s

objection to the PSR is insufficient to preserve his claim. We should not vacate Prater’s sentence

for a reason Prater himself never raised in the district court.

No.13-5039 United States v. Prater Page 25

Interpreting the first paragraph of Prater’s objection statement in light of the second

paragraph further undermines the majority’s conclusion. The “arguments previously raised” on

which Prater relies appear in his first and second motions to dismiss.1 He argued that the strict

liability nature of the ACCA enhancement “is a violation of due process,” that the ACCA

enhancement violates “the Fifth and Sixth Amendments[’] [] protection against vagueness,” that

the ACCA enhancement violates the Eighth Amendment, and that his New York convictions’

violate the Second Amendment. These are the same grounds specifically enumerated in the

second paragraph of his objection statement. Nowhere did Prater allege that his prior New York

felony convictions were not violent felonies. Thus, regardless whether we read the first and

second paragraph of Prater’s objection statement together or separately, Prater has not preserved

this claim.

The majority also finds it important to note that both the probation officer and the district

court judge addressed whether Prater’s convictions were violent felonies. The majority admits

elsewhere, however, that “[i]t is the ‘government [that] bears the burden of proof with regard to

the various penalties it seeks to have imposed under the sentencing guidelines.” Maj. Op. at 16

(quoting United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996)). Even absent an objection, it

was incumbent upon the government and the district court judge to ensure that Prater’s prior

convictions were qualifying predicate offenses. The fact that the district court concluded that

Prater’s convictions were violent felonies does not mean that Prater can now question whether

they qualify as violent felonies for the first time on appeal.2

Accordingly, I would review only for plain error the district court’s conclusion that

Prater’s convictions are “violent felonies” within the meaning of the ACCA. The reasons

provided by the majority opinion for holding that the district court did not plainly err by

concluding that Prater’s prior convictions are “crimes of violence” apply equally here. As the

1

Prater relied on these same “previously raised” objections during the sentencing colloquy too.

2

To the extent that the district court judge’s statements are relevant, the judge’s order overruling Prater’s

objections to the PSR describes Prater’s objections as follows:

Therefore, the defendant is properly designated an armed career criminal. His objections present no cogent

argument to the contrary. Instead, the defendant summarily alludes to attacks on his prior convictions that

have been previously rejected by this court. The defendant’s arguments regarding vagueness, overbreadth,

restoration of rights, and the Second and Eighth Amendments have already been addressed by this court

and will not be discussed further.

No.13-5039 United States v. Prater Page 26

opinions in this case illustrate, whether a conviction for a state law offense is a “violent felon[y]”

is “subject to reasonable dispute,” Puckett v. United States, 556 U.S. 129, 135 (2009), meaning

the error—if any—is not “plain.” The fact that the Second Circuit has held that New York’s

third-degree burglary statute categorically qualifies as a violent felony further precludes a finding

of plain error. See United States v. Williams, 53 F.3d 769, 772 (6th Cir. 1995).

II.

Not only did the district court not plainly err, however, it did not err at all. My

disagreement with the majority opinion arises from its characterization of the scope of risk

inherent in the two non-generic forms of New York’s third-degree burglary statute. Our cases

demand a more permissive approach when comparing alternative elements to their generic form.

We are required to assess the risk inherent “in the ordinary case” where the elements are present.

United States v. Skipper, 552 F.3d 489, 493 (6th Cir. 2009). “A risk need not itself be an

element of an offense in order to be considered as part of the hypothetical ‘ordinary case’ by

which the offense’s dangerousness is measured. . . . It is instead enough that the risk is

reasonably likely to arise in the ordinary case where the elements themselves are present . . . .”

Id. The risk involved in the commission of New York third-degree burglary need not be “exactly

the same kind of risk” as involved in generic burglary. And the risk relevant to this analysis is

not merely the possibility of a violent confrontation with someone in or around the building.

Taylor v. United States, 495 U.S. 575, 588 (1990), also emphasizes the risk of violent

confrontation with “some other person who comes to investigate.”

The first alternative form of third-degree burglary is knowingly entering or remaining

unlawfully in a vehicle or watercraft used for overnight lodging of persons, or used by persons

for carrying on business therein, or used as an elementary or secondary school. See N.Y. Penal

Law §§ 140.20, 140.00(2). The majority believes that

the offense encompasses unlawful entry of a houseboat but not a recreational

canoe, of a food truck but not a recreational seaplane, of a mobile home used as a

classroom but not a school bus. By restricting its application to places where

people are likely to be found, New York’s burglary statute, as applied to vehicles

and watercraft, is sufficiently similar to generic burglary.

No.13-5039 United States v. Prater Page 27

Maj. Op. at 20. Although the majority reaches the correct conclusion, it unnecessarily restricts

the scope of the conduct contemplated by this alternative. The modified categorical approach

directs us to analyze the “elements of the offense,” not how relevant courts have construed the

elements of the underlying state offense. Relevant courts can, nonetheless, assist in describing

conduct covered by the plain terms of the statute. The first alternative covers a wide array of

places. For instance, a “building” includes a department store’s “storage trailer” from which

customers could pick up large items, see People v. Wandell, 728 N.Y.S.2d 578, 579 (App. Div.

2001); a passenger train car, see People v. Marino, 617 N.Y.S.2d 26, 26 (App. Div. 1994); or a

van used by a “construction company primarily to transport workers, materials and tools,” see

People v. Mincione, 489 N.E.2d 1285, 1285 (N.Y. Ct. App. 1985). This alternative is not

restricted to places “where people are likely to be found.” Maj. Op. at 20. Even a food truck or

mobile home used as a classroom likely is occupied only a few hours each day. Yet this is

sufficient for the majority to conclude that the risk of violent confrontation is sufficiently similar

to the risk inherent in generic burglary.

But the majority then concludes that because the second alternative form of burglary—

knowingly entering or remaining unlawfully in an enclosed motor truck or motor-truck trailer,

see §§ 140.20, 140.00(2)—contains no requirement that it be used for “lodging, business, or

schooling,” the risk of a violent confrontation “is significantly less,” and thus Prater’s conviction

must be vacated. Maj. Op. at 21. The absence of this specific requirement is irrelevant,

however, if in the ordinary case a similar risk is likely to arise during the burglary of an enclosed

motor truck or motor-truck trailer. See Skipper, 552 F.3d at 493. Although undefined in

§ 140.00(2), a motor truck is generally a commercial vehicle used to transport cargo. See, e.g.,

N.Y. Transp. Law § 210 (“The term ‘motor truck’ as used in this article shall be deemed to mean

and include any commercial motor vehicle held and used for the transportation of goods, wares

and merchandise for hire or for a business purpose, pursuant to the rules and regulations of the

commissioner.”). Motor trucks often are attached to motor-truck trailers, and many even have

sleeper compartments. A motor truck may be less likely to be occupied than a building, but is a

motor truck—especially considering its cargo—less likely to be occupied than a food truck,

passenger rail car, or mobile home used as a classroom? And, whether occupied or not, can we

conclude that the risk of violent confrontation with one who investigates a burglary in progress is

No.13-5039 United States v. Prater Page 28

somehow less where a motor truck is involved? The majority opinion provides little support for

answering these questions in the affirmative, and yet its decision to vacate Prater’s sentence

relies entirely on these distinctions. The risk, in the typical case, is “comparable,” James v.

United States, 550 U.S. 192, 212 (2007), to that posed by burglary of a houseboat, mobile home,

food truck, and passenger train car, and comparable to that posed by burglarizing a building in

“its ordinary meaning.”

Our cases are mostly unhelpful in conducting this elements-specific inquiry. The fact

that we held in United States v. Coleman, 655 F.3d 480, 482 (6th Cir. 2011), that burglary of an

“occupied structure” or “a separately secured or separately occupied portion of an occupied

structure,” presented a risk similar to that of generic burglary tells us nothing about the nature of

the risk posed by unlawfully entering a motor truck. Similarly, finding that trespassing in the

“habitation” of another, see Skipper, 552 F.3d at 492–93, or in “places in which a person is

actually or likely to be present,” see United States v. Lane, 909 F.2d 895, 909 (6th Cir. 1990),

involves a risk similar to that inherent in generic burglary does not answer the question whether,

for instance, trespassing in a food truck, motor truck, or passenger rail car presents similar risks.

Despite acknowledging that the modified categorical approach is the correct approach,

the majority opinion surveys the caselaw and concludes, “We are aware of no case in which this

court has held that a divisible statute, containing an alternative form of burglary similar to the

one at issue here, categorically qualified as a predicate offense under the residual clause.” Maj.

Op. at 24. But three sentences later the majority opinion acknowledges that United States v.

Andrello, 9 F.3d 247, 249–50 (2d Cir. 1993) (per curiam) did just that, and yet it correctly

dismisses Andrello for “fail[ing] to apply the modified categorical approach.” Maj. Op. at 25.

As the majority admits, “ACCA decisions do not control beyond the specific statute under

consideration in the jurisdiction issuing the ruling.” Maj. Op. at 26. The modified categorical

approach, when used under the residual clause, requires an elements-specific inquiry. The fact

that no other court has yet to use this inquiry on a set of elements similar to those at issue here is

irrelevant.

I respectfully dissent.