Petitioners Brief — Jamar Alonzo Quarles, Petitioner v. United States
Supreme Court briefFeb 20, 2019
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No. 17-778
In the Supreme Court of the United States
JAMAR ALONZO QUARLES, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
BRIEF FOR THE PETITIONER
DANIEL R. ORTIZ
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
SUPREME COURT
LITIGATION CLINIC
580 Massie Road
Charlottesville, VA
22903
MARK T. STANCIL
MATTHEW M. MADDEN
ROBBINS, RUSSELL,
ENGLERT, ORSECK,
UNTEREINER & SAUBER
LLP
2000 K Street, N.W.
Washington, DC 20006
(202) 775-4500
JOHN P. ELWOOD
JEREMY C. MARWELL
Counsel of Record
JOSHUA S. JOHNSON
MATTHEW X. ETCHEMENDY
VINSON & ELKINS LLP
2200 Pennsylvania Ave.,
NW, Suite 500 West
Washington, DC 20037
(202) 639-6500
jmarwell@velaw.com
QUESTION PRESENTED
The Armed Career Criminal Act, 18 U.S.C.
§ 924(e), imposes a mandatory minimum prison term
of 15 years upon any convicted felon who unlawfully
possesses a firearm and who has three or more prior
convictions for any “violent felony or * * * serious drug
offense.” The definition of a “violent felony” includes a
burglary conviction that is punishable by
imprisonment for a term exceeding one year. See id.
§ 924(e)(2)(B)(ii). In Taylor v. United States, 495 U.S.
575 (1990), this Court held that § 924(e) uses the term
“burglary” in its generic sense, to cover any crime
“having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure,
with intent to commit a crime.” Id. at 598-599.
The question presented is:
Whether Taylor’s definition of generic burglary
requires proof that intent to commit a crime was
present at the time of unlawful entry or first unlawful
remaining.
(I)
II
TABLE OF CONTENTS
Page
Question Presented...................................................... I
Table Of Authorities ................................................. IV
Opinion Below ............................................................. 1
Jurisdiction ................................................................. 1
Statutory Provisions Involved .................................... 1
Introduction ................................................................ 1
Statement .................................................................... 4
Summary Of Argument ............................................ 11
Argument .................................................................. 13
I.
Taylor And ACCA Demand Contemporaneous Intent ............................................ 15
II.
Contemporaneous
Intent
Was
A
Fundamental Component Of Burglary At
Common Law, And Most States Retained
That Rule When ACCA Was Enacted ........... 18
A.
Contemporaneous Intent Was A
Fundamental
Component
Of
Common-Law Burglary ....................... 18
B.
Leading Commentators Around
The Time Of ACCA’s Enactment
Continued
To
View
Contemporaneous
Intent
As
A
Fundamental Requirement Of
Burglary ............................................... 23
C.
At
The
Time Of
ACCA’s
Enactment, Only A Small Minority
Of States Had Rejected The
III
Contemporaneous-Intent
Requirement ........................................ 25
III.
A Contemporaneous-Intent Requirement
Serves Congress’s Purpose Of Reserving
Enhanced Penalties For Dangerous
Career Criminals ........................................... 51
Conclusion ................................................................. 56
IV
TABLE OF AUTHORITIES
Cases:
Page(s)
Adamo Wrecking Co. v. United States,
434 U.S. 275 (1978) .............................................. 29
Begay v. United States,
553 U.S. 137 (2008) ...................................... passim
Bifulco v. United States,
447 U.S. 381 (1980) .............................................. 29
Bonds v. State,
436 N.E.2d 295 (Ind. 1982) .................................. 35
Braddy v. State,
111 So. 3d 810 (Fla. 2012) .................................... 47
Champlin v. State,
267 N.W.2d 295 (Wis. 1978) ................................. 46
Commonwealth v. Gonzales,
443 A.2d 301 (Pa. Super. Ct. 1982) ...................... 43
Commonwealth v. Russell,
460 A.2d 316 (Pa. Super. Ct. 1983) ...................... 43
Commonwealth v. Vinnicombe,
549 N.E.2d 1137 (Mass. App. Ct. 1990) ............... 37
Cooper v. People,
973 P.2d 1234 (Colo. 1999) (en banc) ............. 31, 32
Davis v. State,
611 So. 2d 906 (Miss. 1992).................................. 38
Day v. State,
532 S.W.2d 302 (Tex. Crim. App. 1976) .............. 48
Delgado v. State,
776 So. 2d 233 (Fla. 2000) .................................... 47
V
Cases—Continued:
Page(s)
Dolan v. State,
925 A.2d 495 (Del. 2007) ................................ 29, 32
Espinoza v. State,
955 S.W.2d 108 (Tex. App. 1997) ......................... 48
Garcia v. State,
463 N.E.2d 1099 (Ind. 1984) ................................ 35
Gratton v. State,
456 So. 2d 865 (Ala. Crim. App. 1984)................. 46
Griego v. People,
19 P.3d 1 (Colo. 2001) ........................................... 31
Harper v. State,
478 So. 2d 1017 (Miss. 1985)................................ 38
Hewatt v. State,
455 S.E.2d 104 (Ga. Ct. App. 1995) ..................... 47
Hickerson v. State,
667 S.W.2d 654 (Ark. 1984) ................................. 31
In re J.N.S.,
308 P.3d 1112 (Or. Ct. App. 2013) ....................... 50
Johnson v. United States,
135 S. Ct. 2551 (2015) .................................... 10, 30
Jones v. Commonwealth,
687 S.E.2d 738 (Va. 2010) .................................... 45
Jones v. United States,
526 U.S. 227 (1999) ................................................ 8
Keith v. State,
225 S.E.2d 719 (Ga. Ct. App. 1976) ..................... 47
Lawson v. Commonwealth,
53 S.W.3d 534 (Ky. 2001) ..................................... 49
VI
Cases—Continued:
Page(s)
Levesque v. State,
217 N.W.2d 317 (Wis. 1974) ........................... 45, 46
Mathis v. United States,
136 S. Ct. 2243 (2016) .................................. 6, 7, 17
Matthews v. State,
741 P.2d 370 (Idaho Ct. App. 1987) ..................... 33
McCarthy v. Commonwealth,
867 S.W.2d 469 (Ky. 1993) ................................... 49
McClellan v. Commonwealth,
715 S.W.2d 464 (Ky. 1986) ................................... 49
New Prime Inc. v. Oliveira,
139 S. Ct. 532 (2019) ............................................ 25
People v. Barnhart,
638 P.2d 814 (Colo. App. 1981) ............................ 31
People v. Barron,
163 N.W.2d 219 (Mich. 1968) ............................... 37
People v. Bondurant,
296 P.3d 200 (Colo. App. 2012) ............................ 31
People v. Boose,
487 N.E.2d 1088 (Ill. App. Ct. 1985).................... 34
People v. Bradford,
50 N.E.3d 1112 (Ill. 2016) .................................... 34
People v. Cash,
351 N.W.2d 822 (Mich. 1984) ................................. 9
People v. Gaines,
546 N.E.2d 913 (N.Y. 1989).......................... passim
People v. Green,
404 N.E.2d 930 (Ill. App. Ct. 1980)...................... 34
VII
Cases—Continued:
Page(s)
People v. Tackett,
414 N.E.2d 748 (Ill. App. Ct. 1980)...................... 34
People v. Weaver,
243 N.E.2d 245 (Ill. 1968) .............................. 34, 35
Ray v. State,
522 So. 2d 963 (Fla. Dist. Ct. App. 1988) ............ 47
Reed v. State,
560 A.2d 1104 (Md. 1989) .................................... 36
Scott v. Commonwealth,
323 S.E.2d 572 (Va. 1984) .................................... 45
Sessions v. Dimaya,
138 S. Ct. 1204 (2018) .......................................... 30
Shepard v. United States,
544 U.S. 13 (2005) .................................................. 8
Shetters v. State,
751 P.2d 31 (Alaska Ct. App. 1988) ..................... 30
Skilling v. United States,
561 U.S. 358 (2010) .............................................. 30
State v. Adams,
581 P.2d 868 (Nev. 1978) ..................................... 40
State v. Allen,
110 P.3d 849 (Wash. Ct. App. 2005) .................... 49
State v. Arne,
311 N.W.2d 186 (N.D. 1981) ................................ 42
State v. Belcher,
776 P.2d 811 (Ariz. Ct. App. 1989) ...................... 46
State v. Belton,
461 A.2d 973 (Conn. 1983) ................................... 32
VIII
Cases—Continued:
Page(s)
State v. Burdette,
611 N.W.2d 615 (Neb. 2000) ................................ 40
State v. Cosby,
321 N.W.2d 365 (Wis. Ct. App. 1982) .................. 46
State v. Courville,
769 P.2d 44 (Mont. 1989) ..................................... 39
State v. DeNoyer,
541 N.W.2d 725 (S.D. 1995) ................................. 48
State v. Dible,
538 N.W.2d 267 (Iowa 1995) ................................ 47
State v. Edwards,
524 A.2d 648 (Conn. App. Ct. 1987)..................... 32
State v. Embree,
633 P.2d 1057 (Ariz. Ct. App. 1981) .................... 46
State v. Field,
379 A.2d 393 (Me. 1977) ....................................... 35
State v. Flowers,
475 N.E.2d 790 (Ohio Ct. App. 1984) .................. 50
State v. Fontes,
721 N.E.2d 1037 (Ohio 2000) ............................... 50
State v. Gilliland,
741 S.E.2d 521 (S.C. Ct. App. 2012) .................... 44
State v. Gutierrez,
172 P.3d 18 (Kan. 2007) ....................................... 48
State v. Hanson,
No. A06-567, 2007 WL 2177334 (Minn.
Ct. App. July 31, 2007) ......................................... 37
State v. Howard,
42 S.E. 173 (S.C. 1902) ......................................... 43
IX
Cases—Continued:
Page(s)
State v. Jennings,
691 P.2d 882 (N.M. Ct. App. 1984) ...................... 41
State v. Jones,
426 So. 2d 1323 (La. 1983) ............................. 35, 50
State v. Mahoe,
972 P.2d 287 (Haw. 1998) .................................... 33
State v. Manthie,
641 P.2d 454 (Mont. 1982) ................................... 39
State v. McCormick,
277 S.E.2d 629 (W. Va. 1981)............................... 45
State v. McKnight,
426 P.3d 669 (Or. Ct. App. 2018) ......................... 51
State v. Mogenson,
701 P.2d 1339 (Kan. Ct. App. 1985) .................... 48
State v. Nelson,
523 N.W.2d 667 (Minn. Ct. App. 1994)................ 38
State v. Nieves,
A-2010-11T4, 2014 WL 886810 (N.J.
Super. Ct. App. Div. Mar. 7, 2014) ...................... 41
State v. O’Rourke,
399 A.2d 1237 (R.I. 1979) ..................................... 43
State v. One 1990 Chevrolet Pickup,
523 N.W.2d 389 (N.D. 1994) ................................ 42
State v. Papineau,
630 P.2d 904 (Or. App. Ct. 1981) ......................... 50
State v. Peacock,
330 S.E.2d 190 (N.C. 1985) .................................. 42
X
Cases—Continued:
Page(s)
State v. Pyron,
495 A.2d 467 (N.J. Super. Ct. App. Div.
1985)...................................................................... 41
State v. Reardon,
431 A.2d 796 (N.H. 1981) ..................................... 40
State v. Rollins,
882 S.W.2d 314 (1994) .......................................... 39
State v. Rudolph,
970 P.2d 1221 (Utah 1998)................................... 51
State v. Tellegen,
314 P.3d 902 (Mont. 2013) ................................... 39
State v. Wesemann,
No. 03C01-9407-CR-00260, 1995 WL
605442 (Tenn. Crim. App. Oct. 16, 1995). ........... 55
Taylor v. United States,
495 U.S. 575 (1990) ...................................... passim
United States v. Bernel-Aveja,
844 F.3d 206 (5th Cir. 2016) ........................ passim
United States v. Bonilla,
687 F.3d 188 (4th Cir. 2012) .......................... 16, 19
United States v. Granderson,
511 U.S. 39 (1994) ................................................ 29
United States v. Herrera-Montes,
490 F.3d 390 (5th Cir. 2007) ................................ 55
United States v. Herrold,
883 F.3d 517 (5th Cir. 2018) (en banc) .......... 17, 54
United States v. McArthur,
850 F.3d 925 (8th Cir. 2017) .......................... 16, 23
XI
Cases—Continued:
Page(s)
United States v. Priddy,
808 F.3d 676 (6th Cir. 2015) ................................ 11
United States v. Richards,
No. 13-cr-371, 2014 WL 6686783 (D. Neb.
Nov. 26, 2014) ....................................................... 40
United States v. Stitt,
139 S. Ct. 399 (2018) .................................. 2, 14, 26
Van Cannon v. United States,
890 F.3d 656 (7th Cir. 2018) .......................... 16, 19
Warrick v. United States
528 A.2d 438 (D.C. 1987) ..................................... 33
Worchester v. State,
536 P.2d 995 (Okla. Crim. App. 1975) ................. 43
Statutes:
11 R.I. Gen. Laws § 11-8-1 (1981) ............................. 43
11 R.I. Gen. Laws §§ 11-8-2, 11-8-5.1 (1981) ............ 43
18 Pa. Stat. and Cons. Ann. § 3502 (West
1983)...................................................................... 43
18 U.S.C. § 922(g) ........................................................ 1
18 U.S.C. § 922(g)(1) ................................................ 4, 8
18 U.S.C. § 924(a)(2) .................................................... 4
18 U.S.C. § 924(e) .................................................... 4, 6
18 U.S.C. § 924(e)(1) .................................................... 1
18 U.S.C. § 924(e)(2)(B) ............................................... 5
18 U.S.C. § 924(e)(2)(B)(ii) .......................................... 1
28 U.S.C. § 1254(1) ...................................................... 1
XII
Statutes—Continued:
Page(s)
76 (pt. 2) Del. Laws 115 (2008).................................. 29
720 Ill. Comp. Stat. Ann. 5/19-1(a) (West
1993)...................................................................... 33
1976 S.D. Sess. Laws ch. 158 §§ 32-1, 32-2 .............. 48
1985 S.C. Acts 604-605 .............................................. 43
1988 Minn. Laws 1649, 1654..................................... 38
1989 Tenn. Pub. Acts 1223 ........................................ 44
1994 Mich. Pub. Acts 1264 ........................................ 10
1998 Mass. Acts 1376 ................................................ 37
1999 Me. Laws 788 .................................................... 36
1999 Mich. Pub. Acts 120 .......................................... 10
2014 N.H. Laws 171, 173........................................... 40
Ala. Code §§ 13A-7-5, 13A-7-6, 13A-7-7
(LexisNexis 1994) ................................................. 46
Alaska Stat. Ann. §§ 11.46.300, 11.46.310
(West 1995) ........................................................... 30
Ariz. Rev. Stat. Ann. §§ 13-1506, 13-1507,
13-1508 (1989) ...................................................... 46
Ark. Code Ann. § 5-39-201 (1987) ............................. 31
Cal. Penal Code § 459 (West 1988) ........................... 31
Colo. Rev. Stat. Ann. § 18-4-202 (West 1986) ........... 31
Conn. Gen. Stat. Ann. §§ 53a-101, 53a-102,
53a-103 (West Supp. 1985) .................................. 32
D.C. Code § 22-1801 (1981) ....................................... 32
Del. Code Ann. tit. 11, § 829 (2019) .......................... 29
Del. Code Ann. tit. 11, §§ 824-826 (1979) ................. 32
XIII
Statutes—Continued:
Page(s)
Fla. Stat. § 810.02 (West 1994) ................................. 46
Ga. Code Ann. § 16-7-1 (1988) ................................... 47
Haw. Rev. Stat. §§ 708-810, 708-811 (1985) ............. 33
Idaho Code Ann. § 18-1401 (1987) ............................ 33
Ind. Code Ann. § 35-43-2-1 (LexisNexis 1985) ......... 35
Iowa Code § 713.1 (1979) ........................................... 47
Kan. Stat. Ann. § 21-3715 (1981) .............................. 47
Ky. Rev. Stat. Ann. § 511.020 (LexisNexis
1984)...................................................................... 49
La. Stat. Ann. §§ 14:60, 14:62 (1986) ........................ 35
Mass. Gen. Laws Ann. ch. 266, §§ 14, 15,
16, 16A, 17, 18 (West 1970).................................. 36
Mass. Gen. Laws ch. 266, § 18A (2017) .................... 37
Md. Code Ann. art. 27, §§ 29-31B (Michie
1982 & Supp. 1987) .............................................. 36
Md. Code Ann., Crim. Law § 6-205(a)-(d)
(LexisNexis 2019) ................................................. 36
Md. Code Ann., Crim. Law §§ 6-202, 6-203,
6-204 (LexisNexis 2019) ....................................... 36
Me. Rev. Stat. Ann. tit. 17-A, § 401(1) (1983) ........... 35
Me. Rev. Stat. Ann. tit. 17-A, § 401(3) (1983) ........... 36
Me. Rev. Stat. Ann. tit. 17-A, § 402-A (2005) ........... 36
Mich. Comp. Law § 750.110a(4) ........................ passim
Mich. Comp. Law § 750.110a(7) .................................. 9
Mich. Comp. Law §§ 750.110, 750.111 (1968) ...... 9, 37
Mich. Comp. Laws § 750.110a ............................... 1, 10
XIV
Statutes—Continued:
Page(s)
Mich. Comp. Laws § 750.110a(4)(a) .................... 14, 55
Mich. Comp. Laws § 750.520e(1)(a) ............................ 9
Minn. Stat. § 609.582 (Supp. 1983)........................... 37
Minn. Stat. 609.581, subd. 4(c) (Supp. 1983)............ 37
Miss. Code. Ann. §§ 97-17-19, 97-17-21, 9717-23, 97-17-27, 97-17-29, 97-17-33, 9717-37 (1994) .......................................................... 38
Mo. Ann. Stat. § 569.170, Comment to 1973
Proposed Code (West 1979) .................................. 39
Mo. Rev. Stat. § 562.016.2 ......................................... 38
Mo. Rev. Stat. §§ 569.160.1, 569.170.1 (West
1979)...................................................................... 38
Mont. Code Ann. § 45-6-204 (1987) ........................... 39
Mont. Code Ann. § 45-6-204(1)(b) (2017) .................. 39
N.C. Gen. Stat. § 14-51 (1993)................................... 42
N.D. Cent. Code § 12.1-22-02(1) (2012) .................... 42
N.H. Rev. Stat. Ann. § 635:1 (Supp. 1986) ............... 40
N.H. Rev. Stat. Ann. § 635:2 (LexisNexis
2018)...................................................................... 40
N.J. Stat. Ann. § 2C:18-2(a) (West 1982) .................. 41
N.M. Stat. Ann. § 30-16-3 (Michie Supp.
1984)...................................................................... 41
N.Y. Penal Law §§ 140.20-140.30 (McKinney
2019)................................................................ 27, 41
Neb. Rev. Stat. § 28-507 (1985) ................................. 40
Nev. Rev. Stat. Ann. § 205.060(1) (Michie
1986)...................................................................... 40
XV
Statutes—Continued:
Page(s)
Ohio Rev. Code Ann. § 2911.12 (West 1985) ............ 49
Okla. Stat. Ann. tit. 21, §§ 1431, 1435 (West
1983)...................................................................... 42
Or. Rev. Stat. Ann. §§ 164.215, 164.225
(West 1987) ........................................................... 50
Pub. L. No. 98-473, ch. 18, 98 Stat. 1837,
2185 (1984) ................................................. 4, 15, 17
Pub. L. No. 99-570, § 1402, 100 Stat. 3207,
3207-39 (1986) ........................................................ 5
Public Act 82-238, 1981 Ill. Laws 1275..................... 33
S.C. Code Ann. §§ 16-11-311, 16-11-312, 1611-313 (2003) ........................................................ 43
S.D. Codified Laws §§ 22-32-1, 22-32-3 (1988) ......... 48
Tenn. Code Ann. § 39-14-402 .................................... 44
Tenn. Code Ann. §§ 39-3-401(a), 39-3-403(a),
39-3-404(a)(1) (1982 & Supp. 1986) ..................... 44
Tex. Penal Code Ann. § 30.02(a)(2) (West
1974)...................................................................... 48
Tex. Penal Code Ann. § 30.02(a)(3) ........................... 48
Utah Code Ann. § 76-6-202 (LexisNexis
1990)...................................................................... 51
Va. Code Ann. §§ 18.2-89, 18.2-90, 18.2-91,
18.2-92 (1988) ....................................................... 44
Vt. Stat. Ann. tit. 13, § 1201 (1989) .......................... 44
W. Va. Code Ann. § 61-3-11 (1984) ........................... 45
W. Va. Code Ann. § 61-3-12 (1991) ........................... 45
XVI
Statutes—Continued:
Page(s)
Wash. Rev. Code. Ann. §§ 9A.52.020,
9A.52.030 (West 1988).......................................... 48
Wis. Stat. § 943.10 (1982) .......................................... 45
Wyo. Stat. Ann. § 6-3-301 (LexisNexis 1986) ........... 51
Other Authorities:
2 Joel Prentiss Bishop, Commentaries on the
Criminal Law § 112 (3d ed. 1865) ....................... 20
2 Witkin, Cal. Crim. Law 4th Crimes—
Property § 147 (2012) ........................................... 31
2B Norman Singer & Shambie Singer,
Sutherland Statutes and Statutory
Construction § 50:1 (7th ed. 2018) ....................... 26
3 Joseph Chitty, A Practical Treatise on the
Criminal Law (1816) ............................................ 20
4 William Blackstone, Commentaries on the
Laws of England (1769). ...................................... 19
American Law Institute, Model Penal Code
§ 221.1 (Official Draft and Revised
Comments 1980) ........................................... passim
American Law Institute, Model Penal Code
§ 5.01 (Official Draft and Revised
Comments 1985) ................................................... 22
Armed Career Criminal Legislation: Hearing
on H.R. 4639 and H.R. 4768 Before the
Subcommittee on Crime of the House
Committee on the Judiciary, 99th Cong.,
2d Sess. (1986) ...................................................... 52
XVII
Other Authorities—Continued:
Page(s)
Edward Coke, The Third Part of the
Institutes of the Laws of England (1644) ............. 19
Gerald Leonard, Towards a Legal History of
American Criminal Theory: Culture and
Doctrine from Blackstone to the Model
Penal Code, 6 Buff. Crim. L. Rev. 691
(2003) .................................................................... 20
Harry Toulmin & James Blair, A Review of
the Criminal Law of the Commonwealth
of Kentucky (1804). ............................................... 20
Helen A. Anderson, From the Thief in the
Night to the Guest Who Stayed Too Long:
The Evolution of Burglary in the Shadow
of the Common Law, 45 Ind. L. Rev. 629
(2012). ................................................................... 29
John G. Hawley & Malcolm McGregor, The
Criminal Law (1896) ............................................ 20
John L. Yeager & Ronald L. Carson, 4 Iowa
Practice, Criminal Law & Procedure
§ 294 (1979)........................................................... 47
M. Cherif Bassiouni, Substantive Criminal
Law (1978) ............................................................ 20
Minturn T. Wright III, Statutory Burglary—
The Magic of Four Walls and a Roof, 100
U. Pa. L. Rev. 411 (1951) ..................................... 25
Note, A Rationale of the Law of Burglary, 51
Colum. L. Rev. 1009 (1951) .................................. 24
Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law (1986) ............... passim
XVIII
Other Authorities—Continued:
Page(s)
Wayne R. LaFave, Substantive Criminal
Law (3d ed. 2018) ........................................... 21, 22
Webster’s Encyclopedic Unabridged
Dictionary of the English Language
(2001) .................................................................... 16
William L. Clark, Jr., Hand-Book of
Criminal Law (1894) ............................................ 20
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a8a) is reported at 850 F.3d 836.
JURISDICTION
The judgment of the court of appeals was entered
on March 10, 2017, and a timely petition for rehearing
en banc was denied on June 28, 2017. Justice Kagan
extended the time in which to file a petition for a writ
of certiorari to November 24, 2017, and the petition
was filed on that day. The Court granted the petition
on January 11, 2019. The jurisdiction of this Court
rests on 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent portions of the relevant statutory provisions—18 U.S.C. §§ 922(g) and 924, and Mich. Comp.
Laws § 750.110a—appear in the appendix to the petition for a writ of certiorari. Pet. App. 11a-17a.
INTRODUCTION
The Armed Career Criminal Act (ACCA) imposes a
15-year mandatory minimum sentence on any convicted felon who unlawfully possesses a firearm and
who has three or more prior convictions for any “violent felony or * * * serious drug offense.” 18 U.S.C.
§ 924(e)(1). ACCA defines a “violent felony,” in relevant part, as any crime “punishable by imprisonment
for a term exceeding one year” that “is burglary.” Id.
§ 924(e)(2)(B)(ii). This Court has held that ACCA uses
the term “burglary” in its generic sense, meaning it
has the “basic elements of [1] unlawful or unprivileged
entry into, or remaining in, [2] a building or structure,
[3] with intent to commit a crime.” Taylor v. United
States, 495 U.S. 575, 599 (1990). That definition reflects how the offense of burglary was defined “in the
criminal codes of most States” around the time of
(1)
2
ACCA’s enactment in the mid-1980s. Id. at 598; see
also United States v. Stitt, 139 S. Ct. 399, 406 (2018)
(adopting ACCA interpretation consistent with how “a
majority of state burglary statutes” defined the offense
“[i]n 1986”).
At common law, it was well established that burglary required proof that the defendant intended to
commit another crime at the time of his unlawful entry
into the premises. E.g., Wayne R. LaFave & Austin W.
Scott, Jr., Substantive Criminal Law § 8.13(e), at 473
& n.101 (1986). The question here is whether the generic definition of burglary under ACCA retains that
longstanding contemporaneous-intent requirement,
such that a state offense does not qualify as ACCA
“burglary” if it does not require proof that the defendant intended to commit another offense at the time he
unlawfully entered, or first unlawfully remained in,
the premises.
Taylor resolves that question. Taylor envisioned
two alternative means of committing generic burglary:
“unlawful or unprivileged entry * * * with intent to
commit a crime,” and “unlawful or unprivileged * * *
remaining * * * with intent to commit a crime.” 495
U.S. at 598. The “remaining” prong must refer to the
initial moment when the privilege to be in lawfully entered premises ceases. Otherwise, the alternative “entry” prong would be superfluous: For all practical purposes, every unlawful entry is immediately followed by
unlawful “remaining in” the illegally entered premises. Therefore, just as the “entry” prong refers to a
particular moment in time at which the “intent to commit a crime” must exist, the parallel “remaining” prong
is most naturally read as referring to the initial
3
moment of unlawful “remaining,” and requires the intent to commit another crime to exist at that time.
This conclusion is consistent with the prevailing
understanding of burglary when ACCA was enacted in
1984 and amended in 1986. Leading authorities at
that time—including LaFave and Scott’s Substantive
Criminal Law treatise and the Model Penal Code, both
of which this Court cited in Taylor, 495 U.S. at 598 &
n.8—recognized the continuing vitality of the commonlaw contemporaneous-intent requirement. And at
that time, a substantial majority of state burglary laws
continued to require proof of contemporaneous intent;
only a small minority of states had dispensed with that
requirement.
Demanding proof of contemporaneous intent is also
consistent with Congress’s objective of focusing
ACCA’s stringent penalties on a discrete category of
dangerous career criminals. The government (and the
Sixth Circuit’s decision below) would extend ACCA to
a homeless defendant with a handful of convictions for
committing low-risk, spur-of-the-moment crimes of opportunity, such as stealing clothing or food, while trespassing to seek shelter from the cold. But there is no
indication that Congress would have viewed such defendants as “career” offenders who make their livelihood from crime, or as the kind of dangerous criminals
who are likely to “use [a] gun deliberately to harm a
victim.” Begay v. United States, 553 U.S. 137, 145
(2008).
The government’s request that this Court dispense
with the contemporaneous-intent requirement lacks
any basis in ACCA’s text, history, or purpose and conflicts with this Court’s precedent and prevailing state
4
practice around the time of ACCA’s enactment. This
Court should hold that a state offense qualifies as generic burglary under ACCA only if it requires proof of
contemporaneous intent. Because the ACCA predicate
at issue here—a 2001 Michigan conviction for home invasion in the third degree, Mich. Comp. Law §
750.110a(4)—did not require such proof, the judgment
below should be reversed.
STATEMENT
1. Under 18 U.S.C. § 922(g)(1), it is unlawful for an
individual who has previously been convicted of a felony (i.e., “a crime punishable by imprisonment for a
term exceeding one year”) to possess a firearm. 18
U.S.C. § 922(g)(1). The maximum prison sentence for
violating § 922(g)(1) is usually ten years.
Id.
§ 924(a)(2). ACCA, however, replaces that ten-year
maximum with a 15-year minimum sentence for individuals convicted under § 922(g)(1) who have three or
more prior convictions for certain qualifying offenses.
18 U.S.C. § 924(e).
When Congress originally enacted ACCA in 1984,
it limited the predicate offenses that could trigger the
15-year minimum to “robbery” and “burglary.” Pub. L.
No. 98-473, ch. 18, 98 Stat. 1837, 2185 (1984). The
statute defined burglary as “any felony consisting of
entering or remaining surreptitiously within a building that is property of another with intent to engage in
conduct constituting a Federal or State offense.” Ibid.
Congress enacted ACCA because of concerns about
“the large proportion of crimes committed by a small
number of career offenders, and the inadequacy of
state prosecutorial resources to address this problem.”
Taylor v. United States, 495 U.S. 575, 583 (1990). In
5
particular, the 1984 Congress “singled out burglary (as
opposed to other frequently committed property
crimes such as larceny and auto theft) for inclusion as
a predicate offense * * * because of its inherent potential for harm to persons.” Id. 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,” and “the offender’s own
awareness of this possibility may mean that he is prepared to use violence if necessary to carry out his plans
or to escape.” Ibid.
In 1986, Congress amended ACCA to expand the
predicate offenses triggering the sentence enhancement from simply “robbery or burglary” to any “violent
felony or * * * serious drug offense.” Pub. L. No. 99570, § 1402, 100 Stat. 3207, 3207-39 (1986) (codified as
amended at 18 U.S.C. § 924(e)). The amended statute
defines a “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year” that:
(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B). In what this Court would
later conclude appears to “have been an inadvertent
casualty of a complex drafting process,” Congress in
1986 deleted the 1984 Act’s definition of “burglary.”
Taylor, 495 U.S. at 589-590.
In its 1990 decision in Taylor, this Court addressed
the meaning of the term “burglary” in the absence of a
6
statutory definition. The Court held that, as used in
§ 924(e), “burglary” refers to “the generic sense in
which the term is now used in the criminal codes of
most States.” 495 U.S. at 598. According to Taylor,
generic burglary includes any crime, “regardless of its
exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.”
Id. at 599. In support of that definition, the Court
cited the 1986 edition of Wayne R. LaFave and Austin
W. Scott, Jr.’s Substantive Criminal Law treatise and
the Model Penal Code. Id. at 598 & n.8. The Court
also emphasized that this generic definition of burglary “is practically identical” to the burglary definition set forth in the 1984 Act. Id. at 598.
2. To find that a predicate offense qualifies as generic burglary under ACCA, a court must use a “categorical approach,” which “focus[es] solely on whether
the elements of the crime of conviction sufficiently
match the elements of generic burglary, while ignoring
the particular facts of the case.” Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016). A crime cannot
qualify as an ACCA predicate if its elements are
broader than those of the generic offense. Id. at 2251.
This is true “even if the defendant’s actual conduct
(i.e., the facts of the crime) fits within the generic offense’s boundaries.” Id. at 2248. In such a case, “the
mismatch of elements saves the defendant from an
ACCA sentence.” Id. at 2251. This elements-focused
approach accords with ACCA’s text and reflects this
Court’s recognition that the Sixth Amendment precludes increasing a defendant’s maximum sentence
based on a judge’s factual findings regarding “the manner in which the defendant committed [a prior]
7
offense.” Id. at 2252. It also avoids “unfairness to defendants.” Id. at 2253. As this Court explained in
Mathis:
Statements of non-elemental fact in the records of
prior convictions are prone to error precisely because their proof is unnecessary. At trial, and still
more at plea hearings, a defendant may have no incentive to contest what does not matter under the
law; to the contrary, he may have good reason not
to—or even be precluded from doing so by the court.
When that is true, a prosecutor’s or judge’s mistake
as to means, reflected in the record, is likely to go
uncorrected. Such inaccuracies should not come
back to haunt the defendant many years down the
road by triggering a lengthy mandatory sentence.
Ibid. (citations omitted).
When a single statute lists elements in the alternative, this Court has approved use of a “modified categorical approach,” under which sentencing courts can
look to a limited class of documents to determine the
version of the crime of which the defendant was convicted, and its basic elements.1 Mathis, 136 S. Ct. at
2249. When the predicate offense was decided by a
jury, the sentencing court may look to the charging
document and jury instructions. Taylor, 495 U.S. at
602. When the predicate offense resulted from a guilty
plea, the sentencing court may look to “the charging
1 Although Quarles argued below that his conviction under
Mich. Comp. Law § 750.110a(4) does not constitute a conviction
for generic burglary under the modified categorical approach, neither the district court nor the Sixth Circuit had occasion to reach
the issue, having resolved his challenge on the threshold question
presented here.
8
document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 26
(2005).
The class of approved documents is necessarily limited to those “approaching the certainty of the record
of conviction” so that the sentencing judge can avoid
making a disputed finding of fact that implicates Sixth
Amendment concerns. Shepard, 544 U.S. at 23-25
(“[A]ny fact other than a prior conviction sufficient to
raise the limit of the possible federal sentence must be
found by a jury, in the absence of any waiver of rights
by the defendant.” (citing Jones v. United States, 526
U.S. 227, 243 n.6 (1999))).
3. Petitioner Jamar Quarles pleaded guilty to being
a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). J.A. 115-116. The question presented in this case stems from the parties’ dispute
about whether Quarles’s 2001 Michigan conviction for
home invasion in the third degree qualifies as “burglary” under ACCA. See J.A. 24-28 (Quarles’s statecourt information and judgment). The Michigan statute under which Quarles was convicted, Mich. Comp.
Law § 750.110a(4), provides:
A person is guilty of home invasion in the third
degree if the person * * *
(a) Breaks and enters a dwelling with intent to
commit a misdemeanor in the dwelling, enters a
dwelling without permission with intent to commit
a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without
9
permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits
a misdemeanor.
To convict Quarles under this statute, all the prosecution had to establish was that Quarles “commit[ted] a misdemeanor” while “present in” a dwelling
that he had “enter[ed] * * * without permission” (or
had broken and entered). The prosecution was not required to prove that Quarles harbored any intent to
commit another offense when he unlawfully entered
the dwelling, or at any other time preceding the misdemeanor’s commission. Indeed, for a defendant accused of committing a strict-liability offense or a misdemeanor with a scienter requirement of only negligence or recklessness, the prosecution could obtain a
conviction under § 750.110a(4) without proving that
the defendant ever intended to commit any offense beyond criminal trespass. See, e.g., Mich. Comp. Laws
§ 750.520e(1)(a) (misdemeanor statutory-rape provision); People v. Cash, 351 N.W.2d 822, 824-828 (Mich.
1984) (statutory rape involves “strict liability”). In effect, § 750.110a(4) converts any misdemeanor into a
felony punishable by up to five years of imprisonment
if the defendant happens to commit the misdemeanor
while present in a dwelling that he entered without
permission. See Mich. Comp. Law § 750.110a(7).
Section 750.110a(4) is a recent innovation. At the
time of ACCA’s 1984 enactment and 1986 revision,
Michigan’s burglary analogues required proof that the
defendant entered a structure “with intent to commit”
a felony or larceny therein. Mich. Comp. Law §§
750.110, 750.111 (1968). In 1994, the Michigan legislature first enacted the home-invasion statute under
which Quarles was convicted. Like prior law, however,
10
the 1994 statute continued to require the prosecution
to establish that the defendant entered a dwelling
“with intent to commit a felony or a larceny.” 1994
Mich. Pub. Acts 1264. Not until 1999—over a decade
after ACCA’s enactment and subsequent revision—did
the Michigan legislature amend § 750.110a to proscribe commission of misdemeanors within dwellings
entered without permission. 1999 Mich. Pub. Acts
120, 120-121.
4. Before his guilty plea, Quarles sought the district
court’s determination whether his third-degree home
invasion conviction constituted a “violent felony” under ACCA. R.15. The court declined to make that determination before sentencing. R.19 at 65. Quarles
then pleaded guilty.
At sentencing, Quarles’s final presentence report
identified only three convictions as crimes of violence,
including his 2001 Michigan conviction for third-degree home invasion. R.25 ¶¶ 51, 54, 56. Quarles argued that the 2001 conviction does not satisfy the elements of generic burglary under Taylor and thus does
not qualify as a “violent felony” under ACCA.2 R.50 at
376-377 (Sentencing Memorandum); J.A. 93-94.
Quarles contended that § 750.110a(4) lacks the requisite Taylor elements because it does not require proof
of intent to commit a crime at the moment the defendant entered or first unlawfully remained inside the
building. Ibid. The district court concluded that a
2 The district court originally ruled that Quarles’s Michigan conviction was a violent felony under ACCA’s residual clause. J.A.
83. Quarles appealed, and the Sixth Circuit remanded for resentencing in light of Johnson v. United States, 135 S. Ct. 2551
(2015), which held that the residual clause is unconstitutionally
vague. See J.A. 83.
11
conviction under § 750.110a(4)(a) constitutes generic
burglary under ACCA, J.A. 104, and on May 16, 2016,
sentenced Quarles to 204 months’ imprisonment, J.A.
117.
5. The court of appeals affirmed. Pet. App. 1a-8a.
The court acknowledged that “[t]he question of
whether generic burglary requires intent at entry has
resulted in a circuit split * * * [that] hinges on whether
the ‘remaining in’ language allows for the development
of intent at any point or whether the intent must exist”
at the time the defendant enters or first unlawfully remains inside the building. Id. at 7a. But according to
the court of appeals, “someone who enters a building
or structure and, while inside, commits or attempts to
commit a felony will necessarily have remained inside
the building or structure to do so.” Id. at 8a (quoting
United States v. Priddy, 808 F.3d 676, 685 (6th Cir.
2015)). Thus, the court held that “generic burglary
* * * does not require intent at entry; rather the intent
can be developed while ‘remaining in.’” Ibid. The
court of appeals denied Quarles’s timely petition for
rehearing en banc. Id. at 9a-10a.
SUMMARY OF ARGUMENT
Quarles’s third-degree home invasion conviction
does not qualify as ACCA “burglary” because it did not
require proof that Quarles intended to commit a crime
at the time of his initial unlawful entry or remaining.
In Taylor, this Court held that, in enacting and
amending ACCA in the mid-1980s, Congress adopted
“the generic, contemporary meaning of burglary,” with
three elements: “[1] an unlawful or unprivileged entry
into, or remaining in, [2] a building or other structure,
[3] with intent to commit a crime.” 495 U.S. at 598599. By its plain language, that definition requires
12
intent to commit a crime to exist contemporaneously
with the unlawful or unprivileged entry or initial unlawful or unprivileged remaining. “Entry” indisputably refers to a particular moment in time. Similarly,
the parallel “remaining” prong is most naturally read
as referring to the initial moment of unlawful or unprivileged presence—at which time the “intent to commit a crime” must exist. By contrast, if “remaining”
refers to a continuous condition rather than a discrete
moment in time, the “entry” prong would be superfluous; effectively every unlawful entry would immediately be followed by unlawful “remaining.”
As leading English and American authorities
demonstrate, the requirement that the offender intended to commit another crime at the moment of initial unlawful occupation has for centuries been considered a fundamental component of the offense of burglary. Indeed, the two authorities on which Taylor
principally relied in defining “the generic, contemporary meaning of burglary”—the 1986 edition of LaFave
and Scott’s Substantive Criminal Law treatise and the
Model Penal Code—both unequivocally took the position that burglary requires proof of contemporaneous
intent. The longstanding importance of the contemporaneous-intent requirement reflects burglary’s status
as a special form of the inchoate crime of “attempt”—
the foundational element of which is the intent to commit an offense.
The government cannot show that when Congress
enacted and amended ACCA in the mid-1980s, state
laws had evolved to such an extent that “most States”
had dispensed with the contemporaneous-intent requirement. Taylor, 495 U.S. at 598. As of 1986, a substantial majority of states (at least 37) retained a
13
contemporaneous-intent requirement, while only a
small minority of states had dispensed with it, and in
still other states the law was unsettled.
The contemporaneous-intent requirement is also
consistent with Congress’s objective of reserving
ACCA’s stringent penalties for “a small number” of
dangerous career criminals. Taylor, 495 U.S. at 583.
Individuals who commit spur-of-the-moment crimes of
opportunity while trespassing are not the professional
criminals whom ACCA targets. Nor do their unplanned crimes suggest that they are the kind of violent person likely to “deliberately point [a] gun and
pull the trigger.” Begay v. United States, 553 U.S. 137,
146 (2008).
At minimum, the rule of lenity requires resolving
any ambiguity regarding burglary’s generic definition
in Quarles’s favor. Requiring proof of contemporaneous intent would also avoid the serious due process
concerns of vagueness that would result from jettisoning such a deep-rooted and widely adopted component
of the common-law offense.
ARGUMENT
For centuries, a defining characteristic of the offense of burglary was the required showing of contemporaneous intent: The defendant must have intended
to commit an additional offense “at the time” of his unlawful entry into the relevant structure. Wayne R.
LaFave & Austin W. Scott, Jr., Substantive Criminal
Law § 8.13(e), at 473 & n.101 (1986) (LaFave & Scott
(1986)). To prevail here, the government must show
that by “the time [ACCA] was passed” in 1984 and
amended “[i]n 1986,” that settled understanding of
burglary had evolved to such an extent that “a
14
majority of state burglary statutes” extended to individuals who lacked intent to commit another offense
either at the time of entry or at the time of their initial
unlawful presence in the premises. United States v.
Stitt, 139 S. Ct. 399, 406 (2018).
The government cannot make that showing. Its rejection of the contemporaneous-intent requirement
conflicts with Taylor’s articulation of “the generic, contemporary meaning of burglary” at the time of ACCA’s
enactment, as well as with the understanding in the
principal authorities on which Taylor relied—Congress’s 1984 definition of burglary, the 1986 edition of
LaFave and Scott’s Substantive Criminal Law treatise, and the Model Penal Code. The government’s position also conflicts with the majority position among
states in the mid-1980s that burglary required proof of
the defendant’s intent to commit another offense at the
time of the defendant’s unlawful entry or initial unlawful remaining. Finally, any attempt to extend ACCA
to prior convictions for crimes of opportunity while
trespassing conflicts with Congress’s intent to focus
ACCA’s stringent 15-year mandatory minimum penalty on career offenders who make their livelihood
from crime and are likely to “use [a] gun deliberately
to harm a victim.” Begay, 553 U.S. at 145.
The Sixth Circuit thus erred by holding that “the
‘remaining in’ language” in Taylor’s definition of burglary “allows for the development of intent at any
point” while the defendant is unlawfully present in the
premises. Pet. App. 7a-8a. Once that definitional error is corrected, it is clear that the Michigan statute
involved here sweeps far beyond the definition of generic burglary.
See Mich. Comp. Laws
§ 750.110a(4)(a). The offense defined by this provision
15
is broader than the generic definition of burglary because it allows conviction for simply “commit[ing] a
misdemeanor” while “present in” “a dwelling” “without
permission.” Ibid. The judgment below must therefore be reversed.
I.
TAYLOR AND ACCA DEMAND CONTEMPORANEOUS INTENT
In Taylor, this Court rejected the notion that ACCA
reaches any crime that happens to carry the title “burglary.” 495 U.S. at 590-592. Instead, the Court concluded that, in enacting and amending ACCA in the
mid-1980s, Congress adopted “the generic, contemporary meaning of burglary,” with three elements: “[1]
an unlawful or unprivileged entry into, or remaining
in, [2] a building or other structure, [3] with intent to
commit a crime.” Id. at 598-599. This definition is
“practically identical” to ACCA’s original statutory
definition of “burglary,” id. at 598, which covered “any
felony consisting of entering or remaining surreptitiously within a building * * * with intent to engage in
conduct constituting a Federal or State offense,” 98
Stat. at 2185 (emphasis added). “[N]othing in [ACCA’s
legislative] history” suggests that “Congress intended
in 1986 to replace the 1984 ‘generic’ definition of burglary with something entirely different.” Taylor, 495
U.S. at 590. Instead, “the deletion of the 1984 definition of burglary” appears to “have been an inadvertent
casualty of a complex drafting process.” Id. at 589-590.
“The most natural reading of Taylor” is that its definition of generic burglary “requires intent to commit
a crime at the time of the unlawful or unprivileged entry or the initial ‘remaining in’ without consent.”
United States v. McArthur, 850 F.3d 925, 939 (8th Cir.
16
2017) (Colloton, J.). Taylor presents “remaining in” as
“an alternative means to ‘entry.’” United States v.
Bernel-Aveja, 844 F.3d 206, 218 (5th Cir. 2016) (Higginbotham, J., concurring in judgment). Because “entry” refers to a particular moment in time, the parallel
“remaining prong” is most naturally read as similarly
referring “to the initiation of the trespass.” Ibid.
Therefore, like entry, “[t]he act of ‘remaining in’ a
building, for purposes of generic burglary, is not a continuous undertaking”; rather, “it is a discrete event
that occurs at the moment when a perpetrator, who at
one point was lawfully present, exceeds his license and
overstays his welcome.” McArthur, 850 F.3d at 939;
accord Van Cannon v. United States, 890 F.3d 656, 665
(7th Cir. 2018) (“discrete, alternative acts”). And Taylor’s use of the word “with” in defining the intent requirement—“with intent to commit a crime”—indicates that “the intent [must] accompany” the defendant’s initial unlawful “entry” or “remaining.” United
States v. Bonilla, 687 F.3d 188, 197 (4th Cir. 2012)
(Traxler, C.J., dissenting) (citing Webster’s Encyclopedic Unabridged Dictionary of the English Language
2183 (2001) (defining “with” as “accompanied by; accompanying”)); see also McArthur, 850 F.3d at 939
(emphasizing Taylor definition’s use of “with”); BernelAveja, 844 F.3d at 218 (Higginbotham, J., concurring
in judgment) (same).
The government’s contrary reading would render
Taylor’s “unlawful entry” language superfluous.
McArthur, 850 F.3d at 939. If “remaining” refers to a
continuous condition rather than a discrete moment in
time, then “every unlawful entry with intent would become ‘remaining in’ with intent as soon as the perpetrator enters,” so Taylor’s “unlawful entry” prong
17
would be meaningless. Ibid.; accord Bernel-Aveja, 844
F.3d at 218 (Higginbotham, J., concurring in judgment); see also United States v. Herrold, 883 F.3d 517,
532 (5th Cir. 2018) (en banc) (government’s position
“puts entry almost entirely out of focus; because all entry is followed by its version of remaining in, and because the remaining in lasts until departure, almost
every instance of entry would automatically involve remaining in”). This Court has previously rejected government efforts to rewrite Taylor, emphasizing that “a
good rule of thumb for reading [this Court’s] decisions
is that what they say and what they mean are one and
the same.” Mathis, 136 S. Ct. at 2254. To give full
weight to Taylor’s carefully constructed definition of
generic burglary, both “unlawful entry” and “remaining in” must be read as discrete moments when an unlawful occupation begins. Therefore, a crime is only
generic burglary if this specific act is done “with intent
to commit a crime.”
Congress’s 1984 definition of “burglary” confirms
that the definition of generic burglary applicable to
ACCA cases incorporates a contemporaneous-intent
requirement. The 1984 definition covered “entering or
remaining surreptitiously * * * with intent to engage
in [criminal] conduct.” 98 Stat. at 2185. That definition required the criminal intent to exist at the time
the defendant was “remaining surreptitiously.” Thus,
under the 1984 definition, “burglary” would not encompass instances where a defendant hid himself inside a building while it was open to the public, came
out of hiding after the building closed for the day, and
thereafter formed the intent to commit an offense.
Such a defendant could not be said to have “remain[ed]
surreptitiously * * * with intent to engage in [criminal]
18
conduct.” Therefore, the Sixth Circuit’s conclusion
that “the development of intent [can occur] at any
point” while the defendant is unlawfully present in the
premises (Pet App. 7a; emphasis added) conflicts with
Congress’s 1984 definition of burglary, which this
Court viewed as “practically identical” to Taylor’s definition of generic burglary. Taylor, 495 U.S. at 598.
II.
CONTEMPORANEOUS INTENT WAS A
FUNDAMENTAL COMPONENT OF BURGLARY AT COMMON LAW, AND MOST
STATES RETAINED THAT RULE WHEN
ACCA WAS ENACTED
At common law, the requirement that the offender
intended to commit another crime at the moment of
initial unlawful occupation was a fundamental component of the offense of burglary. That remained true at
the time of ACCA’s enactment. As of the mid-1980s, a
substantial majority of state burglary laws retained
the contemporaneous-intent requirement; only a small
minority had abandoned it. Because ACCA and this
Court’s case law call for courts to apply the generic definition of burglary as it existed when ACCA was enacted and amended in the mid-1980s, a state offense
does not qualify as “burglary” under ACCA unless it
requires proof that the defendant intended to commit
another crime at the time of his initial unlawful entry
or occupation.
A.
Contemporaneous Intent Was A Fundamental Component Of CommonLaw Burglary
“Burglary was defined by the common law to be the
breaking and entering of the dwelling house of another
in the nighttime with the intent to commit a felony.”
19
Taylor, 495 U.S. at 580 n.3 (citation omitted). Although this common-law definition incorporated some
“arcane distinctions” that were no longer in general
use at the time of ACCA’s enactment—e.g., the requirement that the entry occur “in the nighttime”—
this case does not involve a peripheral element. Id. at
593. To the contrary, “[c]ontemporaneous intent was
the essence of burglary at common law, as it was the
element that distinguished the offense from trespass.”
Bonilla, 687 F.3d at 196 (Traxler, C.J., dissenting); accord Van Cannon, 890 F.3d at 665; Bernel-Aveja, 844
F.3d at 218 (Higginbotham, J., concurring in judgment) (“that the perpetrator trespass while already
harboring intent to commit a further crime” is “the
most fundamental character of burglary”).
The most eminent English expositors of the common law emphasized the centrality of burglary’s contemporaneous-intent requirement. Blackstone explained, “[I]t is clear[] that [the] breaking and entry
must be with a felonious intent, otherwise it is only a
trespass.” 4 William Blackstone, Commentaries on the
Laws of England 227 (1769). Sir Edward Coke similarly emphasized that unlawful entry into a home with
intent to commit an offense other than a felony would
not constitute burglary. Edward Coke, The Third Part
of the Institutes of the Laws of England 65 (1644) (entering home “to beat, and not to kill,” is “no burglary”
because “the intent must be to commit felony”). And
Joseph Chitty wrote:
No breaking and entering * * * will be esteemed
burglary unless the party intended, at the time, to
commit a felony. For if the intent were only to commit a trespass, though it is possible death might
ensue, it is not burglary; as the felonious intention
20
at the time of the breaking is necessary to constitute
the offence.
3 Joseph Chitty, A Practical Treatise on the Criminal
Law 1095 (1816) (emphasis added) (citations omitted).
American treatise writers, including the authors of
what was “[p]erhaps America’s first homegrown treatise on criminal law,”3 agreed: The “breaking and entry” required for common-law burglary “must be with
a felonious intent, otherwise it is only a trespass.”
Harry Toulmin & James Blair, A Review of the Criminal Law of the Commonwealth of Kentucky 215 (1804).
Accordingly, “[t]he intent must exist at the time of the
breaking and entry”; “[i]f it is conceived for the first
time after entry, and carried out, the crime is not committed.” William L. Clark, Jr., Hand-Book of Criminal
Law 238 (1894); accord M. Cherif Bassiouni, Substantive Criminal Law 340 (1978) (“Any intent to commit a
felony which is acquired by an intruder after being on
the premises—even though unlawfully—and which he
or she did not have at the time of the breaking in and
entry, is not burglary.”). Because “[t]he intention to
commit a felony must concur in point of time with the
breaking and entering,” “no burglary” occurs “[i]f the
person breaking and entering the house merely intends to commit a trespass,” even if “after he is in the
house he * * * commit[s] a felony which he did not intend at the time he broke and entered.” John G. Hawley & Malcolm McGregor, The Criminal Law 186
(1896); see also 2 Joel Prentiss Bishop, Commentaries
on the Criminal Law § 112 (3d ed. 1865) (“When the
3 Gerald Leonard, Towards a Legal History of American Criminal Theory: Culture and Doctrine from Blackstone to the Model
Penal Code, 6 Buff. Crim. L. Rev. 691, 721 (2003).
21
object of the offender is to commit only a misdemeanor,
and unintentionally what he does amounts to a felony
in law, still, although he is indictable for this felony
done, yet, as it was not intended, he is not guilty of
burglary. The doctrine is, that there must be a particular intent to do a particular act, which act is a felony;
and this intent must be proved to have existed in the
mind of the defendant, as a matter of fact, not merely
as a matter of law.” (footnote omitted)).
The importance that the common law placed on the
contemporaneous-intent requirement reflects the fact
that burglary arose as a special form of “attempt”
crime. See 3 Wayne R. LaFave, Substantive Criminal
Law § 21.1(g) (3d ed. 2018) (LaFave (2018)). Burglary
addressed at least two “defects [in] the traditional law
of attempt.” American Law Institute, Model Penal
Code § 221.1, commentary, pp. 62-63 (Official Draft
and Revised Comments 1980) (Model Penal Code
(1980)). First, because the “common law of attempt ordinarily did not reach a person who embarked on a
course of criminal behavior unless he came very close
to his goal,” intruders apprehended soon after breaking into a dwelling may “not have committed an attempt” under the common law because they may not
yet “have arrived at the [precise] scene” of their intended crime. Id. at 63. Second, “even when the actor’s conduct reached the stage where an attempt was
committed, penalties for attempt [at common law]
were disproportionately low as compared to penalties
for the completed offense.” Ibid.
The common-law offense of burglary “provided a
partial solution to these problems”: “Making entry
with criminal intent an independent substantive offense carrying serious sanctions moved back the
22
moment when the law could intervene in a criminal
design and authorized penalties more nearly in accord
with the seriousness of the actor’s conduct.” Model Penal Code § 221.1, commentary, p. 63 (1980); accord
People v. Gaines, 546 N.E.2d 913, 915 (N.Y. 1989).
And because “every burglary is * * * an attempt to
commit some other crime,” burglary requires proof of
the fundamental element of attempt—the intent to
commit an offense. Model Penal Code § 221.1, commentary, p. 63 (1980); see also, e.g., American Law Institute, Model Penal Code § 5.01, commentary, p. 305
(Official Draft and Revised Comments 1985) (noting
“the common law requirement of purposive conduct as
a prerequisite for attempt liability”); 2 LaFave
§ 11.3(a) (2018) (“mental state required for the crime
of attempt * * * is an intent to commit some other
crime”). “A defendant who simply trespasses with no
intent to commit a crime inside a building does not possess the more culpable mental state that justifies punishment as a burglar.” Gaines, 546 N.E.2d at 915.
23
B.
Leading Commentators Around The
Time Of ACCA’s Enactment Continued To View Contemporaneous Intent As A Fundamental Requirement
Of Burglary
Around the time of ACCA’s enactment, leading
commentators continued to view contemporaneous intent as a fundamental requirement of burglary, thus
indicating that the Congress that enacted and
amended ACCA understood the term “burglary” to encompass a contemporaneous-intent requirement. In
defining “the generic, contemporary meaning of burglary” in Taylor, this Court relied principally on two
authorities—the 1986 edition of LaFave and Scott’s
Substantive Criminal Law treatise and the American
Law Institute’s Model Penal Code. Taylor, 495 U.S. at
598 & n.8. Both unequivocally took the position that
burglary requires proof of contemporaneous intent.
See McArthur, 850 F.3d at 939 (citing LaFave and
Scott and the Model Penal Code).
LaFave and Scott explained: “To have committed
the offense of burglary at common law, one must have
intended to commit a felony while fulfilling the other
requirements.” LaFave & Scott § 8.13(e), at 473
(1986). Therefore, in jurisdictions not recognizing a
“remaining in” theory of burglary liability, “the intent
must exist at the time of the entry.” Id. at 473 n.101.
“If the actor when he was breaking and entering only
intended to commit a simple trespass, he was not
guilty of a burglary although he in fact committed a
felony after entering.” Id. at 473. Even in jurisdictions
recognizing the “remaining in” theory, “the requisite
intent to commit a crime within need[ed]” to “exist at
24
the time the defendant unlawfully remained within.”
Id. § 8.13(b), at 468 (emphasis added).
Similarly, the Model Penal Code’s definition of burglary requires proof that the defendant “enter[ed] a
building or occupied structure * * * with purpose to
commit a crime therein.” Model Penal Code § 221.1(1)
(1980). Thus, under the Model Penal Code, a purpose
to commit another offense “must accompany the intrusion.” Id. § 221.1, commentary, p. 75. The Model Penal Code’s position ensures that burglary convictions
will not be imposed on those who “intru[de] for such
innocent purposes as sleep, [or] escape from inclement
weather.” Id. at 76. It also reflects the fact that
“[m]ost [state] statutes in effect” when the Model Penal Code was completed in 1962 “required a specific
intent at the time of the entry.” Id. at 60 n.**, 64 n.6.
Other commentators writing in the decades preceding ACCA’s enactment reached similar conclusions. A
1951 survey of state burglary laws noted: “Like the
common law, almost all jurisdictions today define burglary so as to require intent to commit a crime other
than the crime of burglary. This intent must exist at
the time of entry.” Note, A Rationale of the Law of Burglary, 51 Colum. L. Rev. 1009, 1016 (1951) (emphasis
added) (footnote omitted). The survey thus concluded
that “[b]urglary may be considered generally to consist
of a trespassory entry into certain buildings with the
intent to commit certain crimes therein,” meaning that
“every burglar enters with intent to commit a further
crime inside the building.” Id. at 1020 (emphasis
added). Another article emphasized that at common
law, “the intent [to commit a felony] had to be present
at the time of the entry, not formed thereafter.” Minturn T. Wright III, Note, Statutory Burglary—The
25
Magic of Four Walls and a Roof, 100 U. Pa. L. Rev. 411,
413-414 (1951) (emphasis added). After surveying
then-existing state laws, the article concluded that the
“gravamen of the crime today” remained “the felonious
intent of the burglar.” Id. at 433; accord id. at 436
n.197.
C.
At The Time Of ACCA’s Enactment,
Only A Small Minority Of States Had
Rejected The Contemporaneous-Intent Requirement
Given the centuries of authority emphasizing contemporaneous intent as an essential element of the offense of burglary, the government faces a daunting
burden here. It must show that by the mid-1980s,
when Congress enacted and amended ACCA, state
criminal codes had evolved to such an extent that
“most States” had dispensed with the contemporaneous-intent requirement. Taylor, 495 U.S. at 598; see
also, e.g., New Prime Inc. v. Oliveira, 139 S. Ct. 532,
539 (2019) (“[I]t’s a fundamental canon of statutory
construction that words generally should be interpreted as taking their ordinary . . . meaning . . . at the
time Congress enacted the statute.” (citation omitted)). Absent such a showing, it must be presumed
that Congress understood its use of the term “burglary” in ACCA to encompass the deeply rooted contemporaneous-intent requirement, which—as explained above—leading authorities viewed as retaining vitality at the time of ACCA’s enactment. Cf. Taylor, 495 U.S. at 592, 594-595 (recognizing that “a statutory term is generally presumed to have its commonlaw meaning” unless “that meaning is obsolete or inconsistent with the statute’s purpose”); 2B Norman
Singer & Shambie Singer, Sutherland Statutes and
26
Statutory Construction § 50:1 (7th ed. 2018) (“All legislation is interpreted in the light of the common law
and the scheme of jurisprudence existing at the time
of its enactment.”).
The government cannot make the requisite showing. Below (pp. 30-51, infra) is a summary of the burglary laws of all 50 states and the District of Columbia
as of 1986, when ACCA was amended and the 1984
definition of “burglary” was deleted. See Stitt, 139
S. Ct. at 406 (surveying state of the law “[i]n 1986” in
interpreting ACCA). As the summary shows, a substantial majority of states—at least 37—retained a
contemporaneous-intent requirement as of 1986. By
contrast, in 1986, only a small minority of states (9)
had dispensed with the contemporaneous-intent requirement.4
The example of New York illustrates that, around
the time of ACCA’s enactment, contemporaneous intent was still widely considered to be a fundamental
component of burglary. New York’s burglary statutes,
which have not been amended since 1981, apply to anyone who “knowingly enters or remains unlawfully in
a [building or dwelling] with intent to commit a crime
4 The laws of the remaining states were ambiguous on this issue
as of 1986—although even several of those strongly suggest retention of a contemporaneous-intent requirement. For the reasons explained above, see pp. 25-26, supra, ambiguity militates
against adopting the government’s position here: Given the centrality of the contemporaneous-intent requirement at common
law, it should not be presumed that a state whose laws were ambiguous had rejected that requirement; to the contrary, it would
be more reasonable to conclude that the ambiguity would likely
be resolved in favor of retaining the longstanding contemporaneous-intent element.
27
therein.” N.Y. Penal Law §§ 140.20-140.30 (McKinney
2019). In People v. Gaines, 546 N.E.2d 913, 914 (N.Y.
1989), the defendant was arrested as he emerged from
the window of a building supply company. He was
wearing clothing and a jacket taken from the building.
Ibid. Other than some pens found in the jacket’s
pocket, the defendant took no other items from the
building. Ibid. In his subsequent burglary prosecution, the defendant testified that he was homeless, had
taken refuge in the building on a snowy night, and had
put on the clothing and jacket to keep warm. Ibid. The
trial court rejected the defendant’s request that the
jury be instructed that it had to find that the defendant intended to commit a crime when he unlawfully
entered the building. Ibid.
The New York Court of Appeals considered
whether jurors “should have been instructed that they
must find defendant’s intent to commit a crime in the
building existed at the time of the entry, or whether no
such instruction need have been given, because the ‘remains unlawfully’ element of the statute means that
such intent may be formed after defendant’s unlawful
entry.” Gaines, 546 N.E.2d at 914. Reversing the defendant’s conviction, the court concluded that New
York law required proof that the defendant “inten[ded]
to commit a crime in the building * * * at the time of
the unlawful entry.” Ibid.
The court emphasized that at common law,
“[u]nless the intent to commit a felony existed at the
time of the breaking and entry, there was no burglary.”
Gaines, 546 N.E.2d at 914. The court determined that
the New York legislature did not intend to override the
“long-standing” contemporaneous-intent requirement
when it adopted a “remaining in” theory of burglary.
28
Id. at 915. As the court explained, a “defendant who
simply trespasses with no intent to commit a crime inside a building does not possess the more culpable
mental state that justifies punishment as a burglar.”
Ibid. According to the court, “[b]y the words ‘remains
unlawfully’ the Legislature sought to broaden the definition of criminal trespass, not to eliminate the requirement that the act constituting criminal trespass
be accompanied by contemporaneous intent to commit
a crime.” Ibid. The court thus held:
In order to be guilty of burglary for unlawful remaining, a defendant must have entered legally,
but remain for the purpose of committing a crime
after authorization to be on the premises terminates. And in order to be guilty of burglary for unlawful entry, a defendant must have had the intent
to commit a crime at the time of entry. In either
event, contemporaneous intent is required.
Id. at 915-916 (emphasis added).
Gaines—which was decided less than a year before
Taylor—demonstrates that Taylor’s reference to “remaining in” liability did not constitute a repudiation of
the deep-rooted contemporaneous-intent requirement.
Indeed, the Delaware Supreme Court recognized in
2007 that “a majority” of states with statutes similar
to New York’s have “held that a person must form the
intent to commit a crime in the dwelling either before
entering the premises or contemporaneously upon entering the premises,” while only a “minority of jurisdictions ha[d] held that a person may form the required
intent to commit a crime ‘therein’ while he remains unlawfully in the dwelling,” and the court chose to “join
the majority” requiring proof of contemporaneous
29
intent. Dolan v. State, 925 A.2d 495, 499-501 (Del.
2007).5
To the extent that ambiguity exists regarding the
generally understood meaning of burglary at the time
of ACCA’s enactment, the rule of lenity requires resolving the ambiguity in Quarles’s favor. See, e.g., Bifulco v. United States, 447 U.S. 381, 387 (1980).
Where, as here, “text, structure, and history fail to establish that the Government’s position is unambiguously correct,” the Court must resolve any “ambiguity
in [the defendant’s] favor.” United States v. Granderson, 511 U.S. 39, 54 (1994); see also Adamo Wrecking
Co. v. United States, 434 U.S. 275, 285 (1978) (“doubts
are resolved in favor of the defendant” (citation omitted)). Applying the rule of lenity here is particularly
appropriate because deriving a “generic” definition of
burglary from a survey of state laws is fraught with
“significant challenges” because “[e]very state has its
own statutory scheme, and the variation [among
states] is enormous.” Helen A. Anderson, From the
Thief in the Night to the Guest Who Stayed Too Long:
The Evolution of Burglary in the Shadow of the Common Law, 45 Ind. L. Rev. 629, 632 (2012).
Indeed, if this Court were to treat as “burglary” under ACCA state laws that reject such a fundamental
component of the common-law offense as the contemporaneous-intent requirement, that would risk rendering ACCA’s use of the term “burglary” profoundly,
even unconstitutionally, vague.
See generally
5 After Dolan, Delaware amended its burglary laws to provide
that the intent to commit a crime “may be formed after the entry
while the person remains unlawfully.” 76 (pt. 2) Del. Laws 115
(2008) (codified at Del. Code Ann. tit. 11, § 829 (2019)).
30
Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidating ACCA’s residual clause as unconstitutionally vague). Given that only a small minority of states
had rejected the contemporaneous-intent requirement
at the time of ACCA’s enactment, stripping that deeprooted common-law element from the generic definition of burglary would “den[y] fair notice to defendants
and invite[] arbitrary enforcement,” id. at 2557, and
would entail the type of unmoored judicial lawmaking
against which the void-for-vagueness doctrine is
aimed, see Sessions v. Dimaya, 138 S. Ct. 1204, 1212
(2018) (plurality op.); id. at 1227-1228 (Gorsuch, J.,
concurring); accord J.A. 103-104. This Court should
reject the government’s expansive conception of burglary to avoid those serious constitutional concerns.
See, e.g., Skilling v. United States, 561 U.S. 358, 408409 (2010) (rejecting interpretation that “would raise
the due process concerns underlying the vagueness
doctrine”).
Summary Of State Burglary Laws As Of 1986
States With A Contemporaneous-Intent Requirement
Alaska: Alaska courts interpreted their state’s burglary statute, which prohibited both unlawful entry
and remaining in a building with intent to commit a
crime therein, to require contemporaneous intent. See
Alaska Stat. Ann. §§ 11.46.300, 11.46.310 (West 1995);
Shetters v. State, 751 P.2d 31, 36 n.2 (Alaska Ct. App.
1988) (if defendant “did not have an intent [to commit
a crime] at the time his presence on the premises first
became unlawful, he could not be convicted of burglary” because “[t]he intent to commit a further crime
must co-exist with the initial criminal trespass”).
31
Arkansas: Arkansas’s definition of burglary penalized a defendant who “enters or remains unlawfully.”
Ark. Code Ann. § 5-39-201 (1987). Hickerson v. State,
667 S.W.2d 654, 655-656 (Ark. 1984), reversed the burglary conviction of a defendant who unlawfully entered
a home, kidnapped a minor from the home, and then
raped her, because there was no evidence “that, at the
time [the defendant] entered the house, he intended to
commit a felony.”
California: California law defined burglary as the
entry (which need not be unlawful) of certain premises
with contemporaneous intent “to commit grand or
petit larceny or any felony.” Cal. Penal Code § 459
(West 1988); see also 2 Witkin, Cal. Crim. Law 4th
Crimes—Property § 147 (2012) (“The prosecution must
prove that the entry was made with the specific intent
‘to commit grand or petit larceny or any felony.’”).
Colorado: In 1986, the Colorado burglary statute
applied to those who “enter[] or remain[] unlawfully in
a building or occupied structure with intent to” commit
the requisite crimes. Colo. Rev. Stat. Ann. § 18-4-202
(West 1986); see also id. § 18-4-203. The defendant’s
intent had to “coexist with the initial point of unlawful
entry or remaining.” Cooper v. People, 973 P.2d 1234,
1240 (Colo. 1999) (en banc), abrogated on other
grounds by Griego v. People, 19 P.3d 1 (Colo. 2001); see
also People v. Barnhart, 638 P.2d 814, 816 (Colo. App.
1981) (burglary requires proof “that the accused entered the building with intent to commit a crime”).6
6 In 1999, Colorado “legislatively overruled Cooper with respect
to the intent element of burglary.” People v. Bondurant, 296 P.3d
200, 214 (Colo. App. 2012). The legislature altered the statutory
language to apply to those who “remain[] unlawfully after a
32
Connecticut: Although Connecticut recognized a
“remaining in” theory of burglary liability, Conn. Gen.
Stat. Ann. §§ 53a-101, 53a-102, 53a-103 (West Supp.
1985), Connecticut courts held that the “remaining in”
theory applies only to defendants who entered a building lawfully and then remained in the building after
their privilege to do so had ended. See State v. Belton,
461 A.2d 973, 976 (Conn. 1983); State v. Edwards, 524
A.2d 648, 653 (Conn. App. Ct. 1987). For defendants
who entered a building unlawfully, the plain statutory
language required proof of contemporaneous intent—
i.e., that the defendant “enter[ed] * * * unlawfully * * *
with intent to commit a crime.” Conn. Gen. Stat. Ann.
§§ 53a-101, 53a-102, 53a-103 (West Supp. 1985).
Delaware: Knowingly entering or remaining unlawfully in a building with intent to commit a crime
constituted burglary. Del. Code Ann. tit. 11, §§ 824826 (1979). Based on the crime’s common-law origins,
the Delaware Supreme Court held in Dolan v. State
that the statutory offense continued to require intent
to commit a crime within the building at the time of
the initial unlawful occupation. 925 A.2d 495, 501
(Del. 2007).7
District of Columbia: The D.C. burglary statute
only prohibited “enter[ing]” premises “with intent to”
commit a crime. D.C. Code § 22-1801 (1981). “Under
lawful or unlawful entry.” Ibid.; see also 1999 Colo. Sess. Laws
326, 327. While the prior statute required proof that the defendant intended to commit a crime “at the moment he first became a
trespasser,” the present-day provisions encompass those who
form their intent later. Bondurant, 296 P.3d at 214 (quoting
Cooper, 973 P.2d at 1240).
7 But cf. note 5, supra.
33
[D.C.’s] burglary statute, the government must prove
beyond a reasonable doubt that the defendant entered
the premises having already formed an intent to commit a crime therein.” Warrick v. United States, 528
A.2d 438, 442 (D.C. 1987) (citation omitted).
Hawaii: Hawaii’s statutes defined burglary as the
intentional and unlawful entry or remaining in a
building with intent to commit a crime against a person or property rights. Haw. Rev. Stat. §§ 708-810,
708-811 (1985). The Hawaii Supreme Court has held
that “[i]t would be an unwarranted extension” of the
statutes “to expand the offense of burglary to include
situations in which the criminal intent develops after
an unlawful entry or remaining has occurred.” State
v. Mahoe, 972 P.2d 287, 291 (Haw. 1998).
Idaho: Idaho’s burglary statute, first adopted in
1972, prohibited any entry, whether or not it was unlawful, of certain premises with intent to commit any
theft or felony. Idaho Code Ann. § 18-1401 (1987). The
Idaho courts required the defendant to have formed
the criminal intent by the time of entry. See Matthews
v. State, 741 P.2d 370, 373 (Idaho Ct. App. 1987) (burglary requires that “defendant conceived of the crime
before entering the premises”); State v. Matthews, 700
P.2d 104, 106 (Idaho Ct. App. 1985) (“Burglary * * *
requires entry into a building with the intent, at that
time, to commit theft or a felony.”).
Illinois: Burglary applied to a person who “without
authority, [k]nowingly enters or without authority remains within a building * * * with intent to commit
therein a felony or theft.” 720 Ill. Comp. Stat. Ann.
5/19-1(a) (West 1993); see also Public Act 82-238, 1981
Ill. Laws 1275, 1275-1276.
“Entry” burglaries
34
required contemporaneous intent. E.g., People v.
Tackett, 414 N.E.2d 748, 749-750 (Ill. App. Ct. 1980).
Although one intermediate appellate court suggested
in dicta that “remains within” burglary did not require
contemporaneous intent, see People v. Boose, 487
N.E.2d 1088, 1091 (Ill. App. Ct. 1985), the weight of
case law was to the contrary at the time of ACCA’s enactment. The Illinois Supreme Court had stated flatly,
at a time when the burglary statute had entry and remaining variants, that “[a] criminal intent formulated
after a lawful entry will not satisfy the statute.” People v. Weaver, 243 N.E.2d 245, 248 (Ill. 1968). And the
Court of Appeals characterized the “remaining in” variant as “aimed at a situation where a defendant lawfully enters a building and then conceals himself with
the intent to commit a felony.” People v. Green, 404
N.E.2d 930, 932 (Ill. App. Ct. 1980). In 2016, the Illinois Supreme Court confirmed that “burglary by remaining includes situations in which an individual enters a public building lawfully, but, in order to commit
a theft or felony, (1) hides and waits for the building to
close, (2) enters unauthorized areas within the building, or (3) continues to remain on the premises after
his authority is explicitly revoked.” People v. Bradford, 50 N.E.3d 1112, 1120 (Ill. 2016) (emphasis added)
(citations omitted).8
8 In characterizing Illinois as lacking a contemporaneous intent
requirement, see Bernel-Aveja, 844 F.3d at 236 n.125 (Owen, J.,
concurring), Judge Owen cited the dicta from Boose, a case where
the “State chose to charge [only] * * * burglary by illegal entry,”
487 N.E.2d at 1090. At the time of ACCA’s enactment, Illinois
courts also recognized a “limited authority” doctrine, under which
authority to be present in a structure (e.g., a store during business
hours) was deemed revoked when a defendant formed the intent
35
Indiana: Only by breaking and entering “in conjunction with” an intention to commit a felony “at the
moment of entry,” could an individual be convicted of
burglary. Bonds v. State, 436 N.E.2d 295, 297 (Ind.
1982); see also Ind. Code Ann. § 35-43-2-1 (LexisNexis
1985). Arguing, for example, that a defendant had “entered [a] trailer simply because he was * * * seeking
shelter” could absolve him of a burglary conviction,
though he subsequently committed a felony within the
trailer. See Garcia v. State, 463 N.E.2d 1099, 1101
(Ind. 1984).
Louisiana: Louisiana’s 1986 burglary statutes did
not include any “remaining in” language; they only encompassed unauthorized entry. See La. Stat. Ann. §§
14:60, 14:62 (1986). Courts required intent to be contemporaneous with unlawful entry. See State v. Jones,
426 So. 2d 1323, 1325 (La. 1983) (“The defendant must
have had the specific intent to commit either a felony
or a theft at the time of his unauthorized entry.”).
Maine: Anyone who “enters or surreptitiously remains in a structure, knowing that he is not licensed
or privileged to do so, with the intent to commit a crime
therein,” commits burglary. Me. Rev. Stat. Ann. tit.
17-A, § 401(1) (1983). It was “an essential element of
burglary * * * that at the time defendant makes an unauthorized entry into a building defendant must then
entertain actual intent to commit a specific crime”
therein. State v. Field, 379 A.2d 393, 395 (Me. 1977)
to commit a crime, on the theory that an owner only holds a building open for lawful purposes. Weaver, 243 N.E.2d at 248. That
doctrine is consistent with a contemporaneous-intent requirement, since the moment of first unlawful remaining in a public
space necessarily coincided with the defendant’s formation of
criminal intent.
36
(emphasis added). The statutory sentencing provision
underscored that “remaining in” was a discrete time of
initial unauthorized presence, not a continuous state:
“[a] person may be convicted both of burglary and of
the crime which he committed or attempted to commit
after entering or remaining in the structure.” Me. Rev.
Stat. Ann. tit. 17-A, § 401(3) (1983) (emphases added).9
Maryland: Burglary required breaking and entering with contemporaneous intent to commit a crime.
See Reed v. State, 560 A.2d 1104, 1106 (Md. 1989)
(“burglary” requires intent to commit a crime “at the
time of the breaking”). Breaking and entering absent
intent was separately defined as a misdemeanor. Md.
Code Ann. art. 27, §§ 29-31B (Michie 1982 & Supp.
1987).10
Massachusetts: Burglary statutes uniformly required entry with intent to commit a crime. Mass. Gen.
Laws Ann. ch. 266, §§ 14, 15, 16, 16A, 17, 18 (West
1970). “In the lexicon of Massachusetts crimes there
[was] no such crime as ‘breaking and entering’ unaccompanied by intent to commit a felony or a
9 In 1999, the Maine legislature codified a separate crime of “ag-
gravated criminal trespass,” applicable to any person who, without authority, “enters a dwelling place and * * * [w]hile in the
dwelling place violates [certain] provision[s] of [the criminal
laws].” Me. Rev. Stat. Ann. tit. 17-A, § 402-A (2005); see also 1999
Me. Laws 788. The contrast between this language and the burglary statute supports a contemporaneous-intent requirement for
“remaining in” burglary.
10 Modern-day Maryland burglary statutes require intent for
first, second, and third-degree offenses. Md. Code Ann., Crim.
Law §§ 6-202, 6-203, 6-204 (LexisNexis 2019). Fourth-degree
burglary covers breaking and entering absent intent, presence on
certain premises with criminal intent, and possession of burglar’s
tools. Id. § 6-205(a)-(d).
37
misdemeanor.” Commonwealth v. Vinnicombe, 549
N.E.2d 1137, 1138 (Mass. App. Ct. 1990).11
Michigan: Separate provisions criminalized
“break[ing] and enter[ing]” certain structures with intent to commit a felony or larceny therein, on the one
hand, and “[e]ntering without breaking” those structures with the same intent, on the other; neither provision spoke to unlawful remaining. Mich. Comp.
Laws §§ 750.110, 750.111 (1968). “[W]hoever [entered]” must have “entertained at the time a felonious
intent.” People v. Barron, 163 N.W.2d 219, 221 (Mich.
1968) (emphasis added).12
Minnesota: Anyone who “enter[ed] a building without consent and with intent to commit a crime,” Minn.
Stat. § 609.582 (Supp. 1983), committed burglary. The
statute defined “enters without consent” to include “remain[ing] within a building without the consent of the
person in lawful possession,” id. § 609.581, subd. 4(c).
“[I]t is necessary that the defendant had the intent to
commit that crime at the time that the defendant either entered or remained in the building. Whether the
defendant intended to commit the crime must be determined from all the circumstances, including, the
manner and time of entry or remaining in the building.” State v. Hanson, No. A06-567, 2007 WL 2177334,
at *3 (Minn. Ct. App. July 31, 2007) (citation omitted);
cf. State v. Nelson, 523 N.W.2d 667, 669-670 (Minn. Ct.
11 In 1998, the Massachusetts legislature enacted a new provi-
sion criminalizing entering “by false pretenses,” including entering by such and committing a larceny, without specifically requiring the intent to commit that larceny exist at the time of entry.
1998 Mass. Acts 1376 (codified at Mass. Gen. Laws ch. 266, § 18A
(2017)).
12 For legislative changes in Michigan, see pp. 9-10, supra.
38
App. 1994) (treating “remain[ing] within a building” as
fixed point in time rather than continuous state, for
purposes of deciding degree of burglary).13
Mississippi: Mississippi’s 1986 burglary statutes
criminalized breaking and entering with intent to commit a crime. See Miss. Code. Ann. §§ 97-17-19, 97-1721, 97-17-23, 97-17-27, 97-17-29, 97-17-33, 97-17-37
(1994). Mississippi courts have held that intent must
be concurrent with unlawful entry. See, e.g., Davis v.
State, 611 So. 2d 906, 911 (Miss. 1992) (holding that at
the moment of unlawful entry, “it is necessary * * * to
show * * * inten[t] to commit a crime therein”); Harper
v. State, 478 So. 2d 1017, 1021 (Miss. 1985) (same).
Missouri: Missouri’s burglary statutes criminalized
“knowingly enter[ing] unlawfully or knowingly remain[ing] unlawfully in a building * * * for the purpose of committing an offense therein.” Mo. Rev. Stat.
§§ 569.160.1, 569.170.1 (West 1979). That the legislature specified that “remaining” must be “for the purpose of committing an offense therein,” ibid. (emphasis
added)—in other words, must be with the “conscious
object to” commit a crime, id. § 562.016.2—suggests
that the intent to commit a crime must be the catalyst
for the decision to remain, rather than a byproduct of
opportunity. That reading is confirmed by the legislative committee comments to the 1973 proposed code,
which emphasized that “[t]he essence of burglary has
traditionally been an unauthorized intrusion plus a
purpose to commit some type of crime”; while “the Committee decided to replace the concept of ‘breaking’ with
13 Minnesota later expanded its burglary statute to prohibit “enter[ing] a building without consent and commit[ting] a crime”
therein. 1988 Minn. Laws 1649, 1654.
39
that of ‘entering or remaining unlawfully,’” it gave no
indication of abandoning the traditional element that
intent must accompany the unauthorized intrusion.14
Mo. Ann. Stat. § 569.170, Comment to 1973 Proposed
Code (West 1979) (emphasis added).
Montana: Montana’s 1986 burglary statute required that the defendant have unlawfully entered or
remained in an occupied structure “with the purpose
to commit an offense therein.” Mont. Code Ann. § 456-204 (1987). Several Montana Supreme Court decisions indicate that intent was required at the moment
of unlawful entry or first unlawful remaining in. See,
e.g., State v. Courville, 769 P.2d 44, 47-48 (Mont.
1989); State v. Manthie, 641 P.2d 454, 456 (Mont.
1982).15
14 Though Judge Owen cites a stray remark from the Missouri
Court of Appeals (postdating ACCA) to reach a different conclusion, see Bernel-Aveja, 844 F.3d at 235 & n.130 (Owen, J., concurring) (citing State v. Rollins, 882 S.W.2d 314, 317-318 (1994)), the
reliance is unwarranted. Rollins never discussed the intent to
commit a crime; the quoted language appears in the context of the
court’s rejection of the contention that without “evidence that
[the] victim unequivocally withdrew any license to remain,” the
prosecution could not show that the defendant knowingly remained unlawfully. 882 S.W.2d at 317.
15 In 2009, the Montana legislature amended the burglary statute to expand the definition of burglary to include situations in
which a defendant knowingly “enters or remains unlawfully in an
occupied structure” and commits an offense in that structure. See
Mont. Code Ann. § 45-6-204(1)(b) (2017); see also State v. Tellegen, 314 P.3d 902, 906 (Mont. 2013) (“burglary is committed
when a person unlawfully enters a structure and commits an offense therein”). That the Montana legislature felt the need to
amend the statute in this manner bolsters the conclusion that
Montana law did require contemporaneous intent before 2009.
40
Nebraska: Since 1977, Nebraska’s burglary statute
has required that the prosecution establish the defendant intended to commit an enumerated crime “when he
broke and entered.” United States v. Richards, No. 13cr-371, 2014 WL 6686783, at *11 (D. Neb. Nov. 26,
2014) (emphasis added) (citing State v. Burdette, 611
N.W.2d 615, 629 (Neb. 2000)); see Neb. Rev. Stat. § 28507 (1985).
Nevada: In 1986, Nevada law defined burglary as
any entry “with intent to commit grand or petit larceny, or any felony.” Nev. Rev. Stat. Ann. § 205.060(1)
(Michie 1986). It did not provide for a crime of burglary based on unlawful remaining. And it required
that the defendant possess the requisite intent at the
time of entry. State v. Adams, 581 P.2d 868, 869 (Nev.
1978) (“A criminal intent formulated after * * * entry
will not satisfy the statute.”).
New Hampshire: New Hampshire’s burglary statute required unprivileged entry into a building with
contemporaneous criminal intent. N.H. Rev. Stat.
Ann. § 635:1 (Supp. 1986); see also State v. Reardon,
431 A.2d 796, 798 (N.H. 1981) (per curiam) (intent “at
the time he entered”). Unlicensed or unprivileged entering or remaining, absent criminal intent, was classified separately in § 635:2 as criminal trespass.16
New Jersey: In 1986, a person was guilty of burglary if “with purpose to commit an offense therein he:
(1) [e]nters * * * or (2) [s]urreptitiously remains” in a
16 In 2014, the burglary statute was amended to include entering or remaining unlawfully with the purpose to commit a crime.
2014 N.H. Laws 171, 173. The criminal trespass provision still
separately addresses unlawfully entering or remaining without
intent. N.H. Rev. Stat. Ann. § 635:2 (LexisNexis 2018).
41
structure without authorization. N.J. Stat. Ann.
§ 2C:18-2(a) (West 1982). New Jersey courts interpreted both variants as requiring contemporaneous intent. E.g., State v. Pyron, 495 A.2d 467, 468 (N.J. Super. Ct. App. Div. 1985) (“An essential element of
N.J.S.A. 2C:18-2(a)(1) burglary is unlawfully entering
a structure for the purpose of committing an offense
once inside.”). State v. Nieves, A-2010-11T4, 2014 WL
886810, at *3 (N.J. Super. Ct. App. Div. Mar. 7, 2014),
held that “a conviction for burglary requires proof that
the defendant has an ulterior purpose or objective—
committing ‘an offense therein’—when the defendant
engages in the proscribed conduct,” i.e., when he “enters or surreptitiously remains in a structure.” “The
temporal congruence of the proscribed conduct and the
purpose to commit a crime in the structure is critical.”
Ibid.
New Mexico: New Mexico defined burglary as the
“unauthorized entry” of a structure “with intent to
commit any felony or theft therein.” N.M. Stat. Ann.
§ 30-16-3 (Michie Supp. 1984); see also State v. Jennings, 691 P.2d 882, 885 (N.M. Ct. App. 1984) (burglary “requires an unauthorized entry with the intent
to commit any felony or theft”).
New York: New York’s burglary statutes, which
have not been amended since 1981, apply to anyone
who “knowingly enters or remains unlawfully in a
[building or dwelling] with intent to commit a crime
therein.” N.Y. Penal Law §§ 140.20-140.30 (McKinney
2019). The New York Court of Appeals has held that
“contemporaneous intent is required” under both the
“entry” and “remaining” prongs of the statutes. People
v. Gaines, 546 N.E.2d 913, 915-916 (N.Y. 1989).
42
North Carolina: North Carolina’s principal burglary statute, N.C. Gen. Stat. § 14-51 (1993), required
proof of contemporaneous intent. See, e.g., State v.
Peacock, 330 S.E.2d 190, 193 (N.C. 1985) (“A breaking
or entering into a building without the intent to commit a felony is not converted into burglary by the subsequent commission therein of a felony subsequently
conceived.” (citation omitted)).
North Dakota: Since 1973, North Dakota’s burglary
statute has criminalized “willfully enter[ing] or surreptitiously remain[ing] in a building or occupied
structure * * * , when at the time the premises are not
open to the public and the actor is not licensed, invited
or otherwise privileged to enter or remain * * * , with
intent to commit a crime therein.” N.D. Cent. Code
§ 12.1-22-02(1) (2012). Although North Dakota courts
have not addressed the contemporaneous-intent issue
with respect to the “surreptitiously remain[ing]”
prong, see Bernel-Aveja, 844 F.3d at 240 (Owen, J.,
concurring), they have made clear that defendants
charged with unlawful entry must have intended to
commit a crime at the time of the entry, see State v.
One 1990 Chevrolet Pickup, 523 N.W.2d 389, 395 (N.D.
1994) (no burglary if defendant committed theft after
entering home “only out of curiosity and without intent
to steal”); State v. Arne, 311 N.W.2d 186, 189 (N.D.
1981) (emphasizing in affirming burglary conviction
that “[t]here was an intent to commit the crime at the
time the building was entered”).
Oklahoma: The burglary statutes prohibited only
“break[ing]” and “enter[ing]” with criminal intent and
made no mention of “remaining in.” Okla. Stat. Ann.
tit. 21, §§ 1431, 1435 (West 1983). Oklahoma courts
confirmed that a defendant must “have the requisite
43
criminal intent at the time of unlawful entry.” Worchester v. State, 536 P.2d 995, 998 (Okla. Crim. App.
1975).
Pennsylvania: Burglary required unlicensed or unprivileged entrance with the intent to commit a crime.
18 Pa. Stat. and Cons. Ann. § 3502 (West 1983). It was
clear by 1986 that “to be convicted of burglary, the defendant must have formed the intent to commit a
crime when he entered * * * , not after he entered.”
Commonwealth v. Russell, 460 A.2d 316, 321 (Pa. Super. Ct. 1983); see also Commonwealth v. Gonzales,
443 A.2d 301, 304 (Pa. Super. Ct. 1982) (burglary requires “contemporaneous intent * * * of committing a
crime” at time of entry).
Rhode Island: “In Rhode Island the burglary statute, § 11-8-1, incorporate[d] the common-law definition of that crime,” which requires breaking and entering with intent to commit a crime. State v. O’Rourke,
399 A.2d 1237, 1238 (R.I. 1979); see also 11 R.I. Gen.
Laws § 11-8-1 (1981). Deviations from the commonlaw crime were separately codified, including provisions criminalizing the mere act of “breaking and entering,” without either intent to commit another crime
or subsequent commission of another crime. E.g., 11
R.I. Gen. Laws §§ 11-8-2, 11-8-5.1 (1981).
South Carolina: South Carolina’s 1986 burglary
statutes required “enter[ing]” a dwelling or building
“with intent to commit a crime” therein. S.C. Code
Ann. §§ 16-11-311, 16-11-312, 16-11-313 (2003); 1985
S.C. Acts 604-605. South Carolina courts have consistently required that intent be concurrent with entry.
See, e.g., State v. Howard, 42 S.E. 173, 175 (S.C. 1902)
(“[T]o justify a [burglary] conviction * * * , the jury
44
ought to be satisfied by the evidence, beyond a reasonable doubt, that the intent to rob existed when the
house was entered, not formed afterward” (citation
omitted)); State v. Gilliland, 741 S.E.2d 521, 526 (S.C.
Ct. App. 2012) (“[T]he intent to commit a crime must
exist at the time the accused enters.”).
Tennessee: In 1986, Tennessee’s burglary statutes
required proof of “breaking and entering” with the “intent to commit a felony.” Tenn. Code Ann. §§ 39-3401(a), 39-3-403(a), 39-3-404(a)(1) (1982 & Supp.
1986).17
Vermont: In 1986, Vermont’s burglary statute provided that a “person is guilty of burglary if he enters
any building or structure * * * with the intent to commit” a listed crime. Vt. Stat. Ann. tit. 13, § 1201
(1989).18
Virginia: Virginia’s burglary statutes required entry with contemporaneous intent to commit a crime.
See Va. Code Ann. §§ 18.2-89, 18.2-90, 18.2-91, 18.2-92
(1988); see also Jones v. Commonwealth, 687 S.E.2d
17 As part of a general revision of its criminal code, Tennessee
amended and consolidated its burglary laws in 1989. See 1989
Tenn. Pub. Acts 1223 (codified as amended at Tenn. Code Ann.
§ 39-14-402).
18 Vermont’s burglary statute does “not apply to a licensed or
privileged entry, or to an entry that takes place while the premises are open to the public, unless the person, with the intent to
commit a crime specified in this subsection, surreptitiously remains” inside after the license expires or the premises are closed.
Vt. Stat. Ann. tit. 13, § 1201 (1989). Regardless, the statute required criminal intent at the time of entry. See Bernel-Aveja, 844
F.3d at 237-238 (Owen, J., concurring) (materially identical contemporary Vermont statute “provides that intent to commit a
crime on the premises must be present at the time of unlawful
entry or at the time of lawful entry”).
45
738, 740 (Va. 2010) (“To sustain the statutory burglary
conviction the Commonwealth was required to prove
that at the time [the defendant] entered the apartment
he intended to commit an assault and battery.”); Scott
v. Commonwealth, 323 S.E.2d 572, 574-575 & n.1 (Va.
1984) (similar).
West Virginia: West Virginia limited burglary to
“enter[ing] * * * with intent to commit a felony or any
larceny therein.” W. Va. Code Ann. § 61-3-11 (1984).
Criminal intent must be contemporaneous with entry.
State v. McCormick, 277 S.E.2d 629 (W. Va. 1981) (per
curiam), is instructive. There, the court concluded
that in a prosecution under a closely related breakingand-entering law (see W. Va. Code Ann. § 61-3-12
(1991)), it was reversible error to “t[ell] the jury that if
they believed * * * the defendant broke and entered
* * * and committed a larceny therein, then he is presumed to have entered with the intent to commit larceny.” 277 S.E.2d at 631-632.
Wisconsin: Burglary applied to those who “intentionally enter[ed]” certain structures without consent
“and with intent to steal or commit a felony in such
place.” Wis. Stat. § 943.10 (1982). “[E]ntry” was defined to “include[] the idea of presence within” a building. Levesque v. State, 217 N.W.2d 317, 318 (Wis.
1974). But to constitute burglary, “[c]on-currently
with the entry [the defendant] must have the intention
to steal or commit a felony.” Id. at 319. For instance,
where a defendant claimed “he entered [a] tavern during open hours, drank too much and passed out in the
men’s room, and then, after awakening while the tavern was closed, he formed the intent to steal,” the
Court of Appeals held that “if he did not form the requisite intent to steal until he awoke inside the tavern,
46
the offense of theft, not burglary, was committed because the intent to steal was not formed prior to or at
the time of entry.” State v. Cosby, 321 N.W.2d 365
(Wis. Ct. App. 1982) (unpub.).19
States Lacking A Contemporaneous-Intent Requirement
Alabama: The Alabama Court of Criminal Appeals
interpreted Alabama’s burglary statutes, Ala. Code
§§ 13A-7-5, 13A-7-6, 13A-7-7 (LexisNexis 1994), as encompassing cases where “the intent to commit a crime”
is “formed after the entry and while the accused remains unlawfully.” Gratton v. State, 456 So. 2d 865,
872 (Ala. Crim. App. 1984).
Arizona: In 1986, Arizona defined burglary as “entering or remaining unlawfully in or on” a structure
“with the intent to commit any theft or any felony
therein.” Ariz. Rev. Stat. Ann. §§ 13-1506, 13-1507,
13-1508 (1989). The Arizona courts held that the statutes did not require proof of contemporaneous intent.
See State v. Embree, 633 P.2d 1057, 1059 (Ariz. Ct.
App. 1981); see also State v. Belcher, 776 P.2d 811, 812
(Ariz. Ct. App. 1989).
Florida: Florida’s 1986 definition of burglary penalized unlicensed “entering or remaining * * * with the
intent to commit an offense.” Fla. Stat. § 810.02 (West
1994). Florida courts do not appear to have squarely
addressed the contemporaneous-intent issue at the
time of ACCA’s enactment. They did recognize that
even where a victim had initially consented to the
19 Cf. Champlin v. State, 267 N.W.2d 295, 299 (Wis. 1978) (reversing burglary conviction where defendant entered with intent
to steal from hotel lobby that was open to the public; rejecting
state’s broad reading of “dicta” from Levesque).
47
defendant’s presence in a building, the victim’s resisting the defendant’s assault “ma[de] his remaining in
the premises after the withdrawal [of consent] a burglary.” Ray v. State, 522 So. 2d 963, 966-967 (Fla. Dist.
Ct. App. 1988), abrogated in part by Delgado v. State,
776 So. 2d 233 (Fla. 2000). Courts later indicated intent could occur after the time of first unlawful remaining. Braddy v. State, 111 So. 3d 810, 844 (Fla.
2012) (per curiam).
Georgia: Burglary covered a defendant who unlawfully “enters or remains” with requisite intent. Ga.
Code Ann. § 16-7-1 (1988). Georgia courts have held
that intent does not need to be concurrent with unlawful entry. See, e.g., Hewatt v. State, 455 S.E.2d 104,
106 (Ga. Ct. App. 1995); Keith v. State, 225 S.E.2d 719,
720 (Ga. Ct. App. 1976).
Iowa: Iowa’s prohibition on unlawfully “remain[ing]” within “an occupied structure” with intent
to commit a crime, Iowa Code § 713.1 (1979), was
thought by leading commentators to allow for formation of such intent after the initial moment of unlawful presence, see John L. Yeager & Ronald L. Carson, 4 Iowa Practice, Criminal Law & Procedure § 294
(1979), and the state’s Supreme Court later adopted
that understanding, State v. Dible, 538 N.W.2d 267,
271 (Iowa 1995).
Kansas: Burglary occurred when a person “knowingly and without authority enter[ed] into or remain[ed] within” a building “with intent to commit a
felony” therein, Kan. Stat. Ann. § 21-3715 (1981),
whether the intent was formed before or after the unlawful entry or initial moment of unlawful presence,
State v. Mogenson, 701 P.2d 1339, 1343-1345 (Kan. Ct.
48
App. 1985); accord State v. Gutierrez, 172 P.3d 18, 23
(Kan. 2007).
South Dakota: South Dakota’s burglary statute
covered both unlawfully “enter[ing]” and “remain[ing]
in an occupied structure,” “with intent to commit any
crime” therein. S.D. Codified Laws §§ 22-32-1, 22-323 (1988); 1976 S.D. Sess. Laws ch. 158 §§ 32-1, 32-2, at
273-274. The South Dakota Supreme Court has stated
that the burglary statute is satisfied if “the person remain[s] in the structure after forming the intent to
commit a crime.” State v. DeNoyer, 541 N.W.2d 725,
732 (S.D. 1995).
Texas: The 1986 burglary statute encompassed not
just entry with intent to commit a felony or theft, but
also “remain[ing] concealed, with intent to commit a
felony,” Tex. Penal Code Ann. § 30.02(a)(2) (West
1974), and it eschewed the intent requirement altogether for anyone who enters a building “and commits
or attempts to commit a felony or theft,” id.
§ 30.02(a)(3). Thus, when a defendant did have intent
to commit a felony, it did not need to be concurrent
with entry. See Day v. State, 532 S.W.2d 302, 305-306
(Tex. Crim. App. 1976) (no intent required for §
30.02(a)(3)); Espinoza v. State, 955 S.W.2d 108, 111
(Tex. App. 1997) (similar).
Washington: Washington’s burglary statute applied to one who, “with intent to commit a crime
against a person or property therein, * * * enters or remains unlawfully in a [covered structure].” Wash.
Rev. Code. Ann. §§ 9A.52.020, 9A.52.030 (West 1988).
The Washington Court of Appeals first addressed the
issue of contemporaneous intent in 2005, holding that
unlawful remaining is a continuous status, not a
49
discrete event; thus, a defendant can develop the requisite intent at any point while unlawfully present in
a building. State v. Allen, 110 P.3d 849, 853-854
(Wash. Ct. App. 2005).
States With Ambiguous Laws
Kentucky: Burglary applied to a person who “with
the intent to commit a crime, * * * knowingly enters or
remains unlawfully in a building.” Ky. Rev. Stat. Ann.
§ 511.020 (LexisNexis 1984). Consistent with retaining a contemporaneous-intent requirement, in 1986,
the Supreme Court of Kentucky held, in vacating a
burglary conviction, that even where a defendant
“knowingly entered and unlawfully remained in the
victim’s apartment,” if “he had no intent to commit a
crime when he entered the room,” he would be “guilty
of criminal trespass only.” McClellan v. Commonwealth, 715 S.W.2d 464, 466-467 (Ky. 1986).20
Ohio: In 1986, it would have been unclear to Congress whether Ohio required contemporaneous intent.
Burglary was defined to mean that “[n]o person by
force, stealth or deception, shall trespass in an occupied structure * * * with purpose to commit therein
any [covered offense].” Ohio Rev. Code Ann. § 2911.12
(West 1985). As of 1986, state appellate courts had diverged on whether “the intent with which a person forcibly trespasses in an occupied structure is that which
he had in mind at the time of the entry, not one which
20 In 1993, the Supreme Court of Kentucky held that a defendant who unlawfully entered a dwelling could “subsequently form[]
the intent necessary to be guilty of the crime of burglary.” McCarthy v. Commonwealth, 867 S.W.2d 469, 471 (Ky. 1993), abrogated
on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534
(Ky. 2001).
50
he may have formed later,” State v. Flowers, 475
N.E.2d 790, 792 (Ohio Ct. App. 1984), or whether “the
‘purpose to commit a felony’ element * * * may legally
be formed while the trespass is in progress,” State v.
Jones, 440 N.E.2d 580, 581 (Ohio Ct. App. 1981).21
Oregon: Burglary applied to anyone who “enters or
remains unlawfully in a building with intent to commit a crime therein.” Or. Rev. Stat. Ann. §§ 164.215,
164.225 (West 1987). Although a single decision of the
Oregon Court of Appeals appeared to suggest that contemporaneous intent was not required, State v.
Papineau, 630 P.2d 904, 907 (Or. App. Ct. 1981), that
court later clarified that “the proper focus is on the defendant’s intent at the initiation of the trespass,” In re
J.N.S., 308 P.3d 1112, 1118 (Or. Ct. App. 2013); see
also ibid. (reading Papineau as not eliminating requirement of contemporaneous intent, and stating
that, insofar as Papineau “can be read to suggest that
a person can be convicted of burglary for unlawfully
entering a building and thereafter forming intent to
commit a crime therein,” that suggestion was inconsistent with the Oregon Supreme Court’s subsequent
interpretation of the burglary statute). The Oregon
Supreme Court has not directly addressed the question, but the Court of Appeals recently reaffirmed that
the state’s burglary statute, which remains substantially the same as in 1986, requires that the defendant
have formed the requisite criminal intent at the moment of unlawful entry or first unlawful remaining.
21 Not until 2000 would the Ohio Supreme Court clarify, in State
v. Fontes, 721 N.E.2d 1037, 1040 (Ohio 2000), that the Ohio burglary statute’s use of the term “trespass” refers to a continual act,
allowing intent to be formed at any time while trespassing.
51
See State v. McKnight, 426 P.3d 669, 673 (Or. Ct. App.
2018).
Utah: Utah’s burglary statute, enacted in 1973,
proscribed entering or remaining unlawfully in any
building or portion thereof with intent to commit a felony, theft, or assault. Utah Code Ann. § 76-6-202 (LexisNexis 1990). As of 1986, the Utah courts had not addressed whether contemporaneous intent was required under the statute.22
Wyoming: Wyoming defined burglary as entering
or remaining in certain structures with intent to commit theft or a felony therein. Wyo. Stat. Ann. § 6-3301 (LexisNexis 1986). But as of 1986, the Wyoming
courts had not addressed when the defendant must
have formed the criminal intent. See Bernel-Aveja,
844 F.3d at 240 (Owen, J., concurring) (noting that it
is “unclear” what Wyoming’s burglary statute “require[s] regarding the timing of intent because the
state courts have not yet addressed the question”).
III.
A CONTEMPORANEOUS-INTENT REQUIREMENT SERVES CONGRESS’S PURPOSE OF RESERVING ENHANCED PENALTIES FOR DANGEROUS CAREER
CRIMINALS
Recognizing a contemporaneous-intent requirement would be consistent with ACCA’s purpose of imposing enhanced penalties on “a small number” of dangerous career criminals. Taylor, 495 U.S. at 583. By
22 Noting that the issue was “one of first impression,” the Utah
Supreme Court in 1998 held that contemporaneous intent is not
required, as a defendant’s continued unlawful presence in a structure satisfies the unlawful remaining element of burglary. See
State v. Rudolph, 970 P.2d 1221, 1228-1229 (Utah 1998).
52
contrast, it would conflict with Congress’s objectives to
inflict ACCA’s harsh mandatory minimum on individuals with prior convictions for committing unplanned
crimes of opportunity while trespassing.
Congress’s use of the word “career” in the title of
the “Armed Career Criminal Act” is meaningful. See
Begay, 553 U.S. at 146 (ACCA’s title “not merely decorative” (citation omitted)). As Taylor explained after
extensively reviewing ACCA’s legislative history,
“Congress focused its efforts on career offenders—
those who commit a large number of fairly serious
crimes as their means of livelihood, and who, because
they possess weapons, present at least a potential
threat of harm to persons.” 495 U.S. at 587-588 (emphasis added).
Individuals who commit spur-of-the-moment
crimes of opportunity during a trespass do not fit that
description. Given the absence of advance planning, it
cannot reasonably be said that such individuals “make
a full-time career” out of burglary. Taylor, 495 U.S. at
584 (quoting Armed Career Criminal Legislation:
Hearing on H.R. 4639 and H.R. 4768 Before the Subcommittee on Crime of the House Committee on the
Judiciary, 99th Cong., 2d Sess. 12 (1986) (statement of
Rep. Wyden) (House Hearing)); see also House Hearing 26 (statement of Deputy Assistant Attorney General James Knapp) (describing burglary as “probably
the No. 1 professional crime”). Nor are such spontaneous offenses likely to reflect a “profit motive” that could
be deterred through enhanced penalties. Taylor, 495
U.S. at 585 (quoting House Hearing 38 (statement of
Bruce Lyons, President-elect of National Association
of Criminal Defense Lawyers)). To the contrary, the
government would brand as an armed career criminal
53
a homeless person with a handful of convictions for
stealing food or clothing after seeking shelter in unoccupied commercial buildings on cold winter nights. Cf.
Gaines, 546 N.E.2d at 914.
Furthermore, individuals with prior convictions
from committing crimes of opportunity while trespassing do not present the increased “threat of harm to persons” that ACCA seeks to address. Taylor, 495 U.S. at
587-588; see also Begay, 553 U.S. at 146 (ACCA “focuses upon the special danger created when a particular type of offender * * * possesses a gun”). “Congress
singled out burglary * * * because of its inherent potential for harm to persons.” Taylor, 495 U.S. at 588;
see also H.R. Rep. No. 849, 99th Cong., 2d Sess. 3
(1986) (“The Subcommittee agreed to add the crimes
* * * that involve conduct that presents a serious potential risk of physical injury to others * * * such as
burglary.”). Taylor recognized that contemporaneous
intent is closely tied to the risk of violence because
“[t]he 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.” 495
U.S. at 588 (emphasis added). An offender with contemporaneous intent generally acts with some amount
of premeditation, increasing the likelihood that he will
be “prepared to use violence if necessary to carry out
his plans or to escape.” Ibid.
Therefore, an individual with a history of carrying
out pre-planned burglaries is more likely to be the type
of dangerous offender at which ACCA is aimed—i.e.,
the kind of person likely to “use [a] gun deliberately to
harm a victim.” Begay, 553 U.S. at 145. But the same
cannot reasonably be said of the homeless person who
commits a crime of opportunity after entering an
54
unoccupied building for no other reason than to escape
from the cold. That is not “purposeful, violent, and aggressive” conduct indicating that “the offender is the
kind of person who might deliberately point the gun
and pull the trigger.” Id. at 145-146; see also Herrold,
883 F.3d at 534 (“Scenarios in which a defendant trespasses but does not intend to commit a crime must engender less risk of confrontation than ones in which he
enters just to commit a crime.”).
The entire rationale for defining burglary as a separate offense collapses if the crime sweeps as broadly
as the government claims. As explained above, see pp.
21-22, supra, “burglary is by hypothesis an attempt to
commit some other crime” and was used at common
law because of the difficulty of punishing inchoate offenses. Model Penal Code § 221.1, commentary, pp.
62-63 (1980). Because modern criminal law has
largely abandoned rigid limits on criminal attempt,
burglary is only justifiable as an independent offense
if it is limited to conduct that creates more danger than
the underlying crime. The existence of criminal intent
at the time of unlawful entry or initial unlawful remaining is a key factor that “creates the possibility of
a violent confrontation.” Taylor, 495 U.S. at 588; cf.
Model Penal Code § 221.1, commentary, p. 63 (1980)
(“[E]ntry into a home at night in order to commit a
theft is surely a more aggravated offense than an attempted theft alone, because of the additional element
of personal danger that attends such conduct.”).
“The ultimate absurdity,” according to the Model
Penal Code’s authors, would be a “provision * * * making it burglary to commit an offense ‘in’ a building, regardless of the lawfulness of the actor’s entry or the
intent with which he entered.” Model Penal Code
55
§ 221.1, commentary, p. 65 (1980) (emphasis added).
Michigan’s third-degree home invasion statute allows
for such an “ultimate absurdity” because it does not
require that criminal intent accompany the initial act
of unlawful occupation. Instead, it merely requires the
prosecution to establish that the defendant “commit[ted] a misdemeanor” while “present in” a dwelling
entered “without permission.” Mich. Comp. Laws
§ 750.110a(4)(a).
Accordingly, by counting Quarles’s third-degree
home invasion conviction as an ACCA predicate, the
decision below pushes ACCA beyond its logical limits.
The Sixth Circuit held that generic burglary “allows
for the development of intent at any point” while a defendant unlawfully remains within a structure. Pet.
App. 7a. Under that rule, a 15-year mandatory minimum could apply not only to the homeless person who
sleeps in a warehouse and steals a coat on his way out,
but also to the “teenagers who unlawfully enter a
house only to party, and only later decide to” steal from
the house, United States v. Herrera-Montes, 490 F.3d
390, 392 (5th Cir. 2007); the hiker who seeks shelter
from the snow in an unoccupied cabin and then takes
food; and the defendant who enters a neighbor’s home
for a glass of water after having been hired to mow her
lawn, and then pockets jewelry sitting near the sink,
cf. State v. Wesemann, No. 03C01-9407-CR-00260,
1995 WL 605442, at *1-2 (Tenn. Crim. App. Oct. 16,
1995). These defendants may perhaps be fairly punished as thieves. But their prior transgressions would
not be proof that they are the individuals targeted by
ACCA: potentially dangerous “career offenders * * *
who commit * * * serious crimes as their means of livelihood.” Taylor, 495 U.S. at 587.
56
CONCLUSION
The judgment below should be reversed.
Respectfully submitted.
DANIEL R. ORTIZ
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
SUPREME COURT
LITIGATION CLINIC
580 Massie Road
Charlottesville, VA
22903
MARK T. STANCIL
MATTHEW M. MADDEN
ROBBINS, RUSSELL,
ENGLERT, ORSECK,
UNTEREINER & SAUBER
LLP
2000 K Street, N.W.
Washington, DC 20006
(202) 775-4500
FEBRUARY 2019
JOHN P. ELWOOD
JEREMY C. MARWELL
Counsel of Record
JOSHUA S. JOHNSON
MATTHEW X. ETCHEMENDY
VINSON & ELKINS LLP
2200 Pennsylvania Ave.,
NW, Suite 500 West
Washington, DC 20037
(202) 639-6500
jmarwell@velaw.com
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