Respondents Brief — Jamar Alonzo Quarles, Petitioner v. United States
Supreme Court briefMar 22, 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 UNITED STATES
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
ZACHARY D. TRIPP
Assistants to the Solicitor
General
DAVID M. LIEBERMAN
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether a state offense that criminalizes an intruder’s unlawful continued presence in a dwelling after
forming the intent to commit a crime has “the basic elements of unlawful * * * remaining in, a building or
structure, with intent to commit a crime,” Taylor v.
United States, 495 U.S. 575, 599 (1990), thereby qualifying as “burglary” under the Armed Career Criminal
Act of 1984, 18 U.S.C. 924(e)(2)(B)(ii).
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory provisions involved ...................................................... 2
Statement ...................................................................................... 2
Summary of argument ................................................................. 7
Argument:
Forming the intent to commit a crime while
unlawfully remaining inside a building or structure
qualifies as ACCA “burglary” ........................................... 11
A. An intruder who decides to commit a crime while
remaining in a dwelling is “remaining with intent”..... 12
1. The plain meaning of “remaining” refers to
continuous, not instantaneous, activity .................. 12
2. Legal authority at the time of the ACCA
supports the plain meaning of “remaining” ........... 19
a. State burglary law indicated that criminal
intent could be formed while “remaining” ...... 19
b. The additional sources that Taylor
consulted are consistent with the ordinary
meaning of “remaining” .................................... 25
B. The normal understanding of “remaining” is the
only definition consistent with the ACCA’s design ..... 28
C. Petitioner’s “initial moment” rule is unsupported
and unsound ..................................................................... 33
1. Petitioner’s state survey is misguided ................... 33
2. Petitioner’s position overcomplicates Taylor
and invites substantial additional ACCA
litigation ..................................................................... 38
D. The court of appeals correctly upheld petitioner’s
sentence............................................................................ 39
Conclusion ................................................................................... 41
Appendix A — Statutory provisions ....................................... 1a
Appendix B — State burglary statutes at the time of
18 U.S.C. 924(e)(2)(B)(ii)’s enactment .......... 6a
(III)
IV
TABLE OF AUTHORITIES
Cases:
Page
Arabie v. State, 699 P.2d 890 (Alaska Ct. App. 1985) ........ 36
Braddy v. State, 111 So. 3d 810 (Fla. 2012) .................. 24, 37
Cooper v. People, 973 P.2d 1234 (Colo. 1999) ...................... 37
Delgado v. State, 776 So. 2d 233 (Fla. 2000) ....................... 36
Dolan v. State, 925 A.2d 495 (Del. 2007) ............................. 37
Entick v. Carrington, 95 Eng. Rep. 807 (K.B. 1765) ......... 17
Forest Grove Sch. Dist. v. T. A., 557 U.S. 230 (2009) ......... 26
Graham Cnty. Soil & Water Conservation Dist. v.
United States ex rel. Wilson, 559 U.S. 280 (2010) ........... 15
Gratton v. State, 456 So. 2d 865 (Ala. Crim. App.
1984) ..................................................................................... 22
Hickerson v. State, 667 S.W.2d 654 (Ark. 1984) ................. 35
J.N.S., In re, 308 P.3d 1112 (Or. Ct. App. 2013) ................. 24
James v. United States, 550 U.S. 192 (2007),
overruled on other grounds by Johnson v. United
States, 135 S. Ct. 2551 (2015) ................................. 29, 31, 32
Johnson v. United States, 135 S. Ct. 2551 (2015) ............. 2, 4
Keith v. State, 225 S.E.2d 719 (Ga. Ct. App. 1976) ............. 22
Mathis v. United States, 136 S. Ct. 2243 (2016) ........... 39, 40
People v. Barnhart, 638 P.2d 814 (Colo. App. 1981) .......... 35
People v. Boose, 487 N.E.2d 1088 (Ill. App. Ct.
1985) ............................................................................... 22, 36
People v. Bradford, 50 N.E.3d 1112 (Ill. 2016) ................... 22
People v. Gaines, 546 N.E.2d 913 (N.Y. 1989) ........ 24, 36, 37
People v. Green, 404 N.E.2d 930 (Ill. App. Ct. 1980),
abrogated in part on other grounds by People v.
Maggette, 747 N.E.2d 339 (Ill. 2001) ................................. 36
People v. Johnson, 284 N.W.2d 718 (Mich. 1979) ............... 40
People v. Vallero, 378 N.E.2d 549 (Ill. App. Ct. 1978) ....... 22
V
Cases—Continued:
Page
People v. Weaver, 243 N.E.2d 245 (Ill. 1968),
cert. denied, 395 U.S. 959 (1969) ....................................... 35
Shetters v. State, 751 P.2d 31 (Alaska Ct. App. 1988) ........ 24
Smith v. United States, 877 F.3d 720 (7th Cir. 2017),
cert. denied, 139 S. Ct. 783, and 139 S. Ct. 784
(2019) .................................................................................... 16
Sparre v. State, 164 So. 3d 1183 (Fla.), cert. denied,
136 S. Ct. 411 (2015) ........................................................... 36
State v. Allen, 110 P.3d 849 (Wash. Ct. App. 2005) ............ 24
State v. Arne, 311 N.W.2d 186 (N.D. 1981) ......................... 36
State v. Belton, 461 A.2d 973 (Conn. 1983).......................... 36
State v. DeNoyer, 541 N.W.2d 725 (S.D. 1995) ................... 22
State v. Edwards, 524 A.2d 648 (Conn. App. Ct. 1987) ...... 36
State v. Embree, 633 P.2d 1057 (Ariz. Ct. App. 1981) ........ 22
State v. Field, 379 A.2d 393 (Me. 1977) ............................... 35
State v. Flowers, 475 N.E.2d 790 (Ohio Ct. App. 1984) ..... 22
State v. Fontes, 721 N.E.2d 1037 (Ohio 2000) ............... 22, 37
State v. Jones, 440 N.E.2d 580 (Ohio Ct. App. 1981) ......... 22
State v. Mahoe, 972 P.2d 287 (Haw. 1998) .......................... 37
State v. Manthie, 641 P.2d 454 (Mont. 1982) ...................... 36
State v. Mogenson, 701 P.2d 1339 (Kan. Ct. App.
1985) ..................................................................................... 22
State v. Papineau, 630 P.2d 904 (Or. Ct. App. 1981) ......... 22
State v. Pyron, 495 A.2d 467 (N.J. Super. Ct.
App. Div. 1985) .................................................................... 35
State v. Rudolph, 970 P.2d 1221 (Utah 1998)................ 24, 37
State v. Walker, 600 N.W.2d 606 (Iowa 1999) ..................... 24
Stokeling v. United States, 139 S. Ct. 544 (2019) ............... 25
Sullivan v. Stroop, 496 U.S. 478 (1990) ............................... 18
Taylor v. United States, 495 U.S. 575 (1990) ............. passim
United States v. Bonilla, 687 F.3d 188
(4th Cir. 2012), cert. denied, 571 U.S. 829 (2013) ............. 40
VI
Cases—Continued:
Page
United States v. Castleman, 572 U.S. 157 (2014) ............... 25
United States v. Cores, 356 U.S. 405
(1958) ...............................................................7, 14, 15, 26, 38
United States v. Herrold, 883 F.3d 517
(5th Cir. 2018), petition for cert. pending,
No. 17-1445 (filed Apr. 18, 2018), and
petition for cert. pending, No. 17-9127
(filed May 21, 2018) ....................................................... 28, 30
United States v. Jones, 565 U.S. 400 (2012) ........................ 17
United States v. Priddy, 808 F.3d 676
(6th Cir. 2015) ........................................................................ 7
United States v. Stitt:
860 F.3d 854 (6th Cir. 2017), rev’d, 139 S. Ct. 399
(2018) ........................................................................... 16
139 S. Ct. 399 (2018) ............................................... passim
Welch v. United States, 136 S. Ct. 1257 (2016) ..................... 4
Young v. State, 266 S.W.3d 744 (Ark. 2007) .................. 35, 36
Statutes and rule:
Armed Career Criminal Act of 1984,
18 U.S.C. 924(e)..................................................................... 3
18 U.S.C. 924(e)(1)................................................. 4, 22, 1a
18 U.S.C. 924(e)(2)(B)(ii) ............................................ 4, 2a
18 U.S.C. App. 1202(c)(9) (Supp. III 1985) ............. 19, 26
8 U.S.C. 1282(c) (1952) .......................................................... 14
18 U.S.C. 922(g) ....................................................................... 3
18 U.S.C. 922(g)(1) ............................................................... 2, 3
18 U.S.C. 922(g)(9) ................................................................. 25
18 U.S.C. 1752(a) (1982) ........................................................ 21
18 U.S.C. 1752(a)(1) ............................................................... 15
18 U.S.C. 2118(b) (Supp. III 1985) ....................................... 21
Ala. Code § 13A-7-7(a) (1982) ......................................... 20, 6a
VII
Statutes and rule—Continued:
Page
Alaska Stat. § 11.46.310(a) (1983) .................................. 20, 6a
Ariz. Rev. Stat. Ann. § 13-1506(A) (Supp. 1986) ........... 20, 7a
Ark. Stat. Ann. § 41-2002(1) (1977) ................................ 20, 7a
Cal. Penal Code § 459 (Deering 1985) ........................... 34, 7a
Colo. Rev. Stat.:
§ 18-4-201(3) (2017) ......................................................... 24
§ 18-4-203(1) (1986) ................................................... 20, 7a
1999 Colo. Sess. Laws 326-327 ............................................. 37
Conn. Gen. Stat. Ann. § 53a-103(a) (West 1972) ........... 20, 8a
Del. Code Ann. tit. 11:
§ 824 (1979)................................................................. 20, 8a
§ 829(d) (2015) .................................................................. 24
76(2) Del. Laws 115 (2007-2008) ........................................... 37
D.C. Code Ann. § 22-1801(a) (1981) ............................... 34, 8a
Fla. Stat. ch. 810.02(1) (1985) ......................................... 20, 9a
Ga. Code Ann. § 16-7-1(a) (Michie 1984) ....................... 20, 9a
Haw. Rev. Stat. § 708-810(1) (1985) ............................... 20, 9a
Haw. Rev. Stat. Ann. § 708-812.5
(LexisNexis 2016) ............................................................... 24
2006 Haw. Sess. Laws 997 .................................................... 37
Idaho Code § 18-1401 (Supp. 1981) .............................. 34, 10a
Ill. Rev. Stat. ch. 38, para. 19-1(a) (1983) .................... 20, 10a
Ind. Code Ann. § 35-43-2-1 (Burns Supp. 1984) ......... 34, 11a
Iowa Code § 713.1 (1985) .............................................. 20, 11a
Kan. Stat. Ann. § 21-3715 (Supp. 1980) ....................... 20, 11a
Ky. Rev. Stat. Ann. § 511.040(1) (Michie 1985) .......... 20, 12a
La. Rev. Stat. Ann. § 14:62 (West 1986) ...................... 34, 12a
Me. Rev. Stat Ann. tit. 17-A, § 401(1) (West 1983)..... 20, 12a
Md. Ann. Code art. 27, § 30(a) (1982) .......................... 34, 13a
Mass. Gen. L. ch. 266, § 15 (1986) ................................ 34, 13a
Mich. Comp. Laws § 750.110 (1981) ............................. 34, 13a
VIII
Statutes and rule—Continued:
Page
Mich. Comp. Laws Ann. (West):
§ 750.110a(4)(a) (Supp. 2001) ................................ 6, 39, 4a
§ 750.110a(4)(a) (2004)............................................... 23, 24
Minn. Stat. (1986):
§ 609.581(4) ...................................................................... 20
§ 690.582(3)............................................................... 20, 14a
Minn. Stat. Ann. (West 2018):
§ 609.581(4)............................................................... 24, 14a
§ 609.582(3)....................................................................... 24
Miss. Code Ann. (1973):
§ 97-17-19.................................................................. 34, 15a
§ 97-17-25.......................................................................... 21
Mo. Rev. Stat. § 569.170(1) (1986) ................................ 20, 15a
Mont. Code Ann.:
§ 45-6-204(1) (1985) ................................................. 20, 15a
§ 45-6-204(1) (2017) ......................................................... 24
Neb. Rev. Stat. § 28-507(1) (1985) ................................ 34, 16a
Nev. Rev. Stat. Ann. § 205.060(1) (Michie 1986) ........ 34, 16a
N.H. Rev. Stat. Ann.:
§ 635:1(I) (1986) ....................................................... 34, 16a
§ 635:1(I) (LexisNexis 2015)........................................... 23
N.J. Stat. Ann. § 2C:18-2(a) (West 1982) .................... 20, 17a
N.M. Stat. Ann. § 30-16-3 (Michie 1978) ..................... 34, 17a
N.Y. Penal Law § 140.20 (McKinney 1975) ................. 20, 18a
N.C. Gen. Stat. § 14-51 (1986) ...................................... 34, 18a
N.D. Cent. Code § 12.1-22.02(1) (1985)........................ 20, 19a
Ohio Rev. Code Ann. § 2911.12(A)
(Anderson Supp. 1985) ............................................... 20, 19a
Okla. Stat. Ann. tit. 21, § 1435 (West 1983) ................. 34, 19a
Or. Rev. Stat. § 164.215(1) (1983) ................................. 20, 20a
18 Pa. Cons. Stat. Ann. § 3502(a) (1983) ...................... 34, 20a
IX
Statutes and rule—Continued:
Page
R.I. Gen. Laws § 11-8-1 (1981) ..................................... 34, 20a
S.C. Code Ann. § 16-11-313(A)
(Law. Co-op. Supp. 1985) ........................................... 34, 21a
S.D. Codified Laws § 22-32-8 (1979) ............................ 20, 31a
Tenn. Code Ann.:
§ 39-3-401(a) (1982) ................................................. 34, 21a
§ 39-14-402(a) (2018)........................................................ 23
§ 39-14-402(a)(3) (2018) ................................................... 24
Tex. Penal Code Ann. (West):
§ 30.02(a)(3) (1974) ............................................ 20, 21, 22a
§ 30.02(a)(3) (Supp. 2018)................................................ 24
Utah Code Ann. § 76-6-202(1) (1978) ........................... 20, 22a
Vt. Stat. Ann. tit. 13, § 1201(a) (Supp. 1982) ............... 20, 22a
Va. Code Ann. § 18.2-89 (Michie 1982) ........................ 34, 23a
Wash. Rev. Code. (1985):
§ 9A.52.030(1) ........................................................... 20, 23a
§ 9A.52.040 ............................................................... 20, 23a
W. Va. Code Ann. § 61-3-11(a)-(b) (Michie 1977) ....... 34, 24a
Wisc. Stat. Ann. § 943.10(1) (West 1982) ..................... 34, 25a
Wyo. Stat. Ann. § 6-3-301(a) (Supp. 1986)................... 20, 25a
Sup. Ct. R. 14.1(a) .................................................................. 40
Miscellaneous:
4 William Blackstone, Commentaries on the Laws of
England (1769) .................................................................... 17
H.R. Rep. No. 1073, 98th Cong., 2d Sess. (1984) ................ 29
2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law (1986) .................. 17, 20, 27, 33
Model Penal Code § 221.1 cmt. 3 (1980) .................. 27, 28, 32
13 Oxford English Dictionary (2d ed. 1993) ...................... 13
X
Miscellaneous—Continued:
Page
Population Div., U.S. Census Bureau,
Annual Estimates of the Resident Population:
April 1, 2010 to July 1, 2018 (Dec. 2018),
https://factfinder.census.gov/faces/tableservices/
jsf/pages/productview.xhtml?pid=PEP_2018_
PEPANNRES&src=pt ..................................................... 25
Restatement (Second) of Torts (1965) ........................... 15, 17
Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts (2012) ......................... 18
3 Charles E. Torcia, Wharton’s Criminal Law
(15th ed. 1995) ..................................................................... 15
Webster’s New International Dictionary
(2d ed. 1958)......................................................................... 13
Webster’s Third New International Dictionary
(2002) .................................................................................... 13
In the Supreme Court of the United States
No. 17-778
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 UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-8a)
is reported at 850 F.3d 836. A prior opinion of the court
of appeals is not published in the Federal Reporter but
is reprinted at 634 Fed. Appx. 578.
JURISDICTION
The judgment of the court of appeals was entered on
March 10, 2017. A petition for rehearing was denied on
June 28, 2017 (Pet. App. 9a-10a). On September 15,
2017, Justice Kagan extended the time within which to
file a petition for a writ of certiorari to and including
November 24, 2017, and the petition was filed on that
date. The petition for a writ of certiorari was granted
on January 11, 2019. The jurisdiction of this Court rests
on 28 U.S.C. 1254(1).
(1)
2
STATUTORY PROVISIONS INVOLVED
Relevant statutory provisions are reproduced in an
appendix to this brief. App., infra, 1a-5a.
STATEMENT
Following a guilty plea in the United States District
Court for the Western District of Michigan, petitioner
was convicted on one count of possession of a firearm by
a felon, in violation of 18 U.S.C. 922(g)(1). Judgment 1.
He was sentenced to 204 months of imprisonment, to be
followed by five years of supervised release. Judgment
2-3. The court of appeals vacated and remanded in light
of Johnson v. United States, 135 S. Ct. 2551 (2015), and
the district court reimposed the same sentence. 634 Fed.
Appx. 578, 579 (per curiam); Am. Judgment 2-3. The
court of appeals affirmed. Pet. App. 1a-8a.
1. Shortly after he was paroled following a prison
sentence for shooting another person, petitioner assaulted his girlfriend, Chasity Warren, and threatened
to kill Warren’s mother. Presentence Investigation Report (PSR) ¶¶ 8-9. Then, on August 24, 2013, he had a
lengthy dispute with Warren, forced her to accompany
him, and held her at gunpoint. PSR ¶¶ 7-15.
Petitioner was unable to drive that day because he
was “messed up” on Xanax, so Warren was driving the
two of them around. PSR ¶ 10. Petitioner became angry and verbally abusive toward Warren when the car
ran out of gas. Ibid. Warren hailed a cab that took them
to a gas station, where Warren locked herself in a bathroom. PSR ¶ 11. When Warren emerged, petitioner
took her by the arm back to their car. Ibid.
Petitioner got behind the wheel and, after knocking
the side mirror off a parked car, became angrier with
Warren and “struck her in the face,” causing “swelling
below her left eye.” PSR ¶ 12. Warren asked to leave
3
when petitioner stopped at a McDonald’s, but petitioner
physically prevented her from doing so. PSR ¶ 13.
Petitioner drove to his house, where he “continued to
yell at [Warren] and refused to let her leave.” PSR ¶ 14.
At one point, petitioner pointed a handgun at Warren’s
head and asked, “You want to go to a wedding or a funeral?” Ibid. Petitioner “began yelling at her for seeing
other men and [questioning] whether or not she loved
him.” Ibid. Warren eventually escaped and called 911.
PSR ¶ 15.
Officers arrived at the scene and arrested petitioner,
who had attempted to drive away. PSR ¶ 15. During a
protective sweep of petitioner’s house, officers found a
loaded .45-caliber semiautomatic pistol. PSR ¶ 16. Later
forensic examination confirmed that the DNA on the
pistol’s handgrip belonged to petitioner. PSR ¶ 18.
Further investigation revealed that Layassa Moore,
petitioner’s ex-girlfriend, had filed a police report alleging that petitioner had recently visited her home and
demanded to see her children. PSR ¶¶ 19-21. When
Moore began arguing with petitioner, he pulled a gun,
pointed it at her, and told her not to argue with him as
he proceeded upstairs into the home. PSR ¶ 21.
2. A federal grand jury charged petitioner with one
count of possession of a firearm by a felon, in violation
of 18 U.S.C. 922(g)(1), based on the August 24, 2013 incident. PSR ¶¶ 1-2. He pleaded guilty. PSR ¶ 4.
After examining petitioner’s lengthy criminal record, see PSR ¶¶ 47-57, the Probation Office determined
that petitioner qualified for sentencing under the
Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.
924(e). PSR ¶ 61. The ACCA provides that a person
who violates Section 922(g) and “has three previous convictions” for “a violent felony or a serious drug offense”
4
shall be imprisoned for “not less than fifteen years.”
18 U.S.C. 924(e)(1).
The ACCA defines a “violent felony” to include,
among other things, any crime punishable by more than
one year that “is burglary, arson, or extortion, involves
use of explosives” (the enumerated offenses clause) “or
otherwise involves conduct that presents a serious potential risk of physical injury to another” (the residual
clause). 18 U.S.C. 924(e)(2)(B)(ii); see Welch v. United
States, 136 S. Ct. 1257, 1261 (2016). The Probation Office found that three of petitioner’s prior convictions
qualify as violent felonies: (1) a 2002 Michigan conviction for third-degree home invasion; (2) a 2004 Michigan
conviction for assault with a dangerous weapon, and
(3) a 2008 Michigan conviction for assault with a dangerous weapon. PSR ¶¶ 40, 51, 54, 56. The Probation
Office calculated petitioner’s Sentencing Guidelines
range at 188 to 235 months of imprisonment. PSR ¶¶ 40,
61, 103.
Petitioner objected, arguing that his 2002 homeinvasion conviction did not qualify as a violent felony.
See D. Ct. Doc. 29, at 5-20 (Jan. 21, 2015). The district
court determined that the conviction qualified under the
ACCA’s residual clause, overruled the objection, and
sentenced petitioner to 204 months of imprisonment to
be followed by five years of supervised release. J.A. 5577; see J.A. 74 (describing petitioner as “the paradigm
picture for somebody” who “should fall within the”
ACCA because “[f ]irearms, a former girlfriend, and drugs
and alcohol” were “a very dangerous mix for [him]”).
3. Following this Court’s decision in Johnson, which
held that the residual clause is unconstitutionally vague,
135 S. Ct. at 2557, the court of appeals vacated petitioner’s sentence and remanded for a determination of
5
whether the home-invasion conviction qualified as “burglary.” 634 Fed. Appx. at 579.
Although the ACCA does not define “burglary,” this
Court in Taylor v. United States, 495 U.S. 575 (1990),
construed the term in a “generic” manner to include
“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. Taylor instructed
courts to employ a “categorical approach” to determine
whether a prior conviction satisfies that definition. Id.
at 600; e.g., United States v. Stitt, 139 S. Ct. 399, 405
(2018). Under that approach, courts examine the “statutory definition[]” of the crime of conviction in order to
determine whether it necessarily reflects conduct that
constitutes the “generic” form of burglary referenced in
the ACCA. Taylor, 495 U.S. at 600. If the definition
“substantially corresponds” to, or is narrower than, generic burglary as defined in Taylor, the prior offense
categorically qualifies as a predicate conviction under
the ACCA. Id. at 602.
The district court here determined that petitioner’s
home-invasion conviction qualifies as “burglary.” J.A.
104. The court rejected petitioner’s argument that the
Michigan offense is broader than generic burglary because it “does not have as an element that the perpetrator ha[ve] the intent to commit an offense at the time of
the entry or remaining in.” D. Ct. Doc. 50, at 2 (May 4,
2016); see id. at 5 (arguing that “contemporaneous intent” is required). The relevant Michigan statute provides that a “person is guilty of home invasion in the
third degree if the person” either “[b]reaks and enters
a dwelling with intent to commit a misdemeanor in the
dwelling”; “enters a dwelling without permission with
6
intent to commit a misdemeanor in the dwelling”; or
“breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.” Mich. Comp. Laws Ann. § 750.110a(4)(a)
(West Supp. 2001). The court explained that the Michigan statute defines a “specific-intent state crime,” in
that “the intent [must be formed] at the time of entry”
or “while still remaining in an unprivileged access in the
house or in the structure.” J.A. 103. The court remarked,
“I don’t see how you could have a specific-intent crime
committed while residing or remaining in an unprivileged entry status and not satisfy” Taylor’s definition.
Ibid.
The district court accordingly reimposed the same
204-month term of imprisonment. J.A. 104, 111. The
court cited petitioner’s history of “visit[ing] violence on
people * * * close to him with guns while on supervision,” which, the court observed, was “exactly the kind
of danger that * * * we’re meant to address when the
ACCA applies.” J.A. 111; see J.A. 110 (noting petitioner’s “long list of trouble” and the “volatile mix of
the drugs, the anger, the violence, and usually an exgirlfriend, sometimes a present girlfriend”).
4. The court of appeals affirmed, Pet. App. 1a-8a, rejecting petitioner’s argument that generic burglary includes “an intent-at-entry element,” under which the
defendant must form the intent to commit a crime at the
initial moment at which his presence becomes unlawful,
rather than later while still unlawfully remaining, id.
at 7a-8a. The court cited Taylor’s definition of generic
burglary, which includes the “unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id. at 8a (quoting
7
Taylor, 495 U.S. at 598). The court explained that
“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.” Ibid. (quoting United States v. Priddy, 808 F.3d
676, 685 (6th Cir. 2015)). The court accordingly reasoned that “generic burglary, as defined in Taylor, does
not require intent at entry; rather the intent can be developed while ‘remaining in.’ ” Ibid. (quoting Taylor,
495 U.S. at 598).
SUMMARY OF ARGUMENT
The court of appeals correctly determined that petitioner’s home-invasion conviction qualifies as a conviction for generic “burglary” under the ACCA. Under
Taylor v. United States, 495 U.S. 575 (1990), a state offense is generic burglary so long as it has the “basic elements” of an “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit
a crime.” Id. at 599. Taylor’s “contemporaneous-intent
requirement” (Pet. Br. 2) is satisfied by a state offense
that requires proof of the intruder’s intent to commit a
crime at any point while he is inside without permission.
An intruder who develops a criminal intent while remaining is “remaining * * * with intent.” Taylor, 495 U.S.
at 599.
The word “remaining” unambiguously refers to the
entire period of an intruder’s unlawful presence, not
just the first moment. Dictionary definitions of the
word “remain” show that it refers to a continuous activity. And this Court has likewise recognized, in construing a federal criminal statute, that the word “permits no
connotation other than continuing presence.” United
States v. Cores, 356 U.S. 405, 408 (1958). That comports
with common usage: someone who calls in sick for the
8
day remains home sick for the entire day, not just at the
moment he calls in sick.
Petitioner offers little to support his abnormal definition of the word “remaining” to encompass only the
single moment in time at which a continued stay commences. His brief instead focuses almost exclusively on
the undisputed requirement that the “remaining” and
“intent” must coincide in time. The critical question
here, however, is how long “remaining” lasts. To the
extent that petitioner addresses the latter question, he
largely conflates the two burglary variants, unlawful
“remaining” and unlawful “entry,” disregarding their
linguistic and legal differences. Unlawful “entry” is essentially instantaneous and can occur without “remaining”; unlawful “remaining” is generally continuous and
can occur without unlawful “entry.”
When Congress made “burglary” an ACCA predicate in 1986, it intended to capture “the generic sense in
which the term” was “used in the criminal codes of most
States” at that time. Taylor, 495 U.S. at 598. And this
Court has already held that the generic sense included
“remaining * * * with intent.” Id. at 599. At the time,
29 States prohibited “remaining in” burglary, and the
text of each of those State’s burglary statutes was naturally read to encompass situations where the intruder
forms the requisite intent while remaining.
If Congress had delved deeper, the limited case law
at the time reinforced that natural inference: five States’
courts had concluded that an intruder could form the
intent while remaining, two States’ courts had reached
ambiguous or conflicting decisions, and no State had
definitively adopted petitioner’s “initial moment” rule
(nor had the relevant secondary sources suggested
9
such a rule). The weight of authority is similarly lopsided today: 18 States have explicitly adopted (by statute or judicial decision) a rule covering intent formed at
any point, and only three have done otherwise (all by
judicial decision). Congress in 1986 would not have intended to impose an arcane timing requirement that did
not appear on the face of any state statute and was, at
best, a rarity in the limited caselaw at the time (and is
still a rarity today).
Doing so would have been particularly anomalous in
light of the role that the explicit reference to “burglary”
plays in the ACCA—identifying an invasive crime that
presents a substantial risk of a violent encounter in an
enclosed private space. See Taylor, 495 U.S. at 581, 588.
That risk turns on the intruder’s intent to commit a
crime in someone else’s home or other structure, not on
whether he had that intent at the precise moment his
unlawful presence began or developed it later while he
remained. A resident or other victim who encounters
the intruder will ordinarily not know—let alone care—
about the timing or sequence by which the intruder developed the requisite intent. From the victim’s perspective, what matters is that he or she has encountered a
criminally-minded intruder. Petitioner attempts to paint
a more benign picture of burglary by relying on a handful of hypothetical scenarios that largely focus on the
identity of the burglar (which is also unlikely to be
known to the victim) rather than the time at which the
intruder formed the intent. Petitioner does not explain
why intent at the moment of unlawful entry is categorically dangerous, but intent formed while unlawfully remaining is not.
Petitioner relies heavily on a survey—which occupies much of his brief (Br. 25-51)—showing that most
10
state burglary laws in 1986 required “contemporaneous
intent.” But that survey is misplaced. It is undisputed
that generic burglary requires “contemporaneous intent.” The question here is whether “remaining” lasts
only for the initial moment that the intruder lacks permission to be there, or instead lasts the entire time he
stays inside. Petitioner’s survey does not answer that
question. For example, the majority of his 37 supposedly favorable jurisdictions consists of 22 jurisdictions
that prohibited only “entry” burglary, not “remaining
in” burglary, and whose laws therefore do not illuminate how long “remaining” lasts. Petitioner also relies
heavily on a handful of post-1986 decisions, which would
not have been available when the relevant ACCA language was enacted, and overlooks post-1986 judicial decisions and legislative enactments that reject the minority “initial moment” rule.
More fundamentally, sifting through state court decisions defining the exact contours of “remaining” is
misplaced. The list of ACCA predicates includes generic “burglary,” which this Court has construed to encompass impermissibly remaining in a structure with
intent. In doing so, the Court recognized that “exact
formulations” of burglary “vary.” Taylor, 495 U.S. at 598.
And it understood Congress’s “omission of a [statutory]
definition of burglary” to “impl[y], at most, that Congress did not wish to specify an exact formulation,” but
instead gave that term a “generic meaning” with “basic
elements” that a state offense could satisfy “regardless
of its exact definition or label.” Id. at 598-599. No reason exists to muddle the plain language of that “generic” definition with arcane and counterintuitive distinctions about “remaining” that Congress would not
have contemplated when it used the term “burglary” to
11
describe a somewhat variegated, but thematically coherent, set of laws. Congress’s use of the term “burglary” was intended to simplify, not complicate and proliferate, ACCA litigation.
ARGUMENT
FORMING THE INTENT TO COMMIT A CRIME WHILE
UNLAWFULLY REMAINING INSIDE A BUILDING OR
STRUCTURE QUALIFIES AS ACCA “BURGLARY”
In Taylor v. United States, 495 U.S. 575 (1990), this
Court defined “burglary” under the ACCA as “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. That definition unambiguously encompasses the conduct of an intruder who
impermissibly trespasses in a dwelling and while inside
forms the intent to commit a crime: such a person “remain[s] * * * with intent,” ibid.
In arguing otherwise, petitioner primarily focuses on
the requirement that the intent be contemporaneous
with the “remaining.” But that point is undisputed—
and his focus elides the crucial point: an intruder remains in a place the whole time he stays there, so the
contemporaneousness requirement is satisfied when
the intruder forms his intent while inside. To the extent
petitioner even addresses how long “remaining” lasts,
he proposes (Br. 2) to limit the phrase “remaining in” to
“the initial moment when the privilege to be in lawfully
entered premises ceases.” But that limitation is at odds
with the plain language of Taylor, was effectively unknown to the law at the time of the ACCA’s enactment,
and would be detrimental to the ACCA’s scheme for
identifying potentially violent recidivists. As it did earlier this Term in United States v. Stitt, 139 S. Ct. 399
12
(2018), the Court should reject such a hairsplitting limitation on generic burglary—which, if countenanced,
would invite even more litigation—and reaffirm that
Taylor meant what it said.
A. An Intruder Who Decides To Commit A Crime While
Remaining In A Dwelling Is “Remaining With Intent”
Petitioner was convicted of “burglary” within the
meaning of the ACCA, because that term includes a conviction under a state burglary law that can apply when
an intruder forms the requisite intent while unlawfully
remaining inside a dwelling. Such an offense “substantially corresponds” to, or is narrower than, Taylor’s
“generic” conception of burglary, 495 U.S. at 602, because such a person “remain[s] in, a building or structure, with intent to commit a crime,” id. at 599.
1. The plain meaning of “remaining” refers to continuous,
not instantaneous, activity
Taylor’s definition of burglary includes not only
“unlawful or unprivileged entry into,” but also “remaining in, a building or structure, with intent to commit a
crime.” 495 U.S. at 599 (emphasis added). After an intruder enters a dwelling, he remains inside until he
leaves, not merely for an instant when he first decides
to stay. An intruder who develops the intent to commit
a crime while unlawfully present is thus committing generic burglary by unlawfully “remaining in, a building
or structure, with intent to commit a crime.” Ibid.
a. It is common ground between the parties (e.g.,
Pet. Br. 2-4) that burglary under Taylor requires “contemporaneous intent,” i.e., that the intruder must have
criminal intent at the same time he enters or remains
inside the building or other structure. The act of “en-
13
try” is accomplished all at once, and accordingly the intruder must possess the requisite intent at that time if
a burglary conviction rests on the unlawful entry. The
ordinary meaning of “remaining” somewhere, by contrast, refers to the continuous activity of staying there.
For a burglary conviction predicated on unlawful remaining, therefore, the contemporaneousness requirement is satisfied if the intent is formed at any time while
the intruder remains inside.
The standard dictionary definition of the word “remain” means an ongoing action or state of staying in a
particular place. See, e.g., 13 Oxford English Dictionary 578 (2d ed. 1989) (“To continue in the same place (or
with the same person); to abide, stay”; “To continue to
be”); Webster’s Third New International Dictionary
1919 (2002) (“remain” means “still extant, present, or
available”; “to stay in the same place or with the same
person or group”; “to continue unchanged in form, condition, status, or quantity : continue to be.”); see also
Webster’s New International Dictionary 2106 (2d ed.
1958) (similar). That universal definition reflects the
word’s common usage; it would be quite unusual to use
the word “remaining” to refer to a single instant.
If a person stays home from work for a sick day, he
remains at home the entire day—not just first thing in
the morning when he calls in sick. Likewise, if a person
is arrested and invokes his Miranda right to remain silent, he remains silent so long as he does not speak—
not just for the first moment after demanding a lawyer.
The standard meaning of “remaining” also does not
change when an adjective is attached (e.g., “unlawful or
unprivileged * * * remaining,” Taylor, 495 U.S. at 599).
A sit-in, for example, can be described as “peaceful remaining” for as long as it continues to be non-violent.
14
And a condition can accompany the “remaining” even if
it did not exist at the start (e.g., “remaining * * * with
intent,” ibid.). If the worker who called in sick at 9 a.m.
develops a cough at noon, his “remaining at home” lasts
the whole day, and his “remaining at home with a
cough” lasts the whole afternoon.
This Court has previously relied on the continuous
nature of the word “remain” in interpreting federal
criminal law. In United States v. Cores, 356 U.S. 405
(1958), the Court addressed a statute that proscribed an
alien crewman’s “affirmative act of willfully remaining”
in the United States longer than permitted. Id. at 408;
see 8 U.S.C. 1282(c) (1952) (penalizing “[a]ny alien crewman who willfully remains in the United States in excess of the number of days allowed”). The crewman in
Cores landed in Philadelphia and was allowed to stay in
the United States for 29 days, but he overstayed and
later traveled to Connecticut, where he was charged.
356 U.S. at 406. The district court in Connecticut dismissed the indictment for improper venue, on the theory that the offense “was not a continuing crime” and
had been completed in Philadelphia. Ibid. This Court,
however, rejected the argument “that the offense is
completed the moment the permit expires” such that
“even if the alien remains thereafter, he no longer commits the offense.” Id. at 408-409. The Court explained
that “the crucial word ‘remains’ permits no connotation
other than continuing presence.” Id. at 408 (emphasis
added). The Court found it “incongruous to say that
while the alien ‘willfully remains’ on the 29th day when his
permit expires, he no longer does so on the 30th, though
still physically present in the country.” Id. at 409. Although “remaining at the instant of expiration satisfies
15
the definition of the crime,” the Court emphasized that
“it does not exhaust it.” Ibid.
The term “remains” also has its typical continuous
meaning in the law of trespass, which the generic definition of burglary parallels in some respects. See
3 Charles E. Torcia, Wharton’s Criminal Law § 332, at
302-303 (15th ed. 1995). It is a trespass to “enter[] land
in the possession” of another or to “remain[] on land”
without permission. Restatement (Second) of Torts § 158
(1965) (Restatement). Consistent with the ordinary
meaning of “remain,” the phrase “remain[] on the land”
does not refer solely to the first instant at which a person remains without permission, but instead refers to “a
continuing trespass for the entire time during which the
actor wrongfully remains.” Id. § 158 cmt. m; cf. 18 U.S.C.
1752(a)(1) (unlawful to “knowingly enter[] or remain[]
in any restricted building or grounds” without authority). If a person called 911 upon encountering an intruder in her home, and the police asked whether the
intruder remained inside, it would be inexplicable to say
“no” if he was still there.
b. Petitioner’s brief focuses almost exclusively on the
undisputed contemporaneous-intent requirement (see
Br. 2-4, 15-18, 25-51), largely failing to address the
meaning of the word “remaining”—the issue that actually decides this case. He provides no dictionary definition of “remaining” at all. To the extent he engages with
the issue, he simply attempts to conflate “entry into”
and “remaining in,” Taylor, 495 U.S. at 599, by exporting the momentary nature of the former to the latter.
But pairing “entry” with “remaining” does not unnaturally transform “remaining” into a word that refers
solely to the first moment at which a person stays, rather than to the entire period of time. Cf. Graham Cnty.
16
Soil & Water Conservation Dist. v. United States ex rel.
Wilson, 559 U.S. 280, 288-289 (2010) (declining to apply
rule of thumb that “a word may be known by the company it keeps” to a short disjunctive list of distinct
words). If a person walks into a store at 4:30 p.m. and
stays for an hour, and an employee is asked when the
person entered and how long he remained, the obvious
answer would be that he entered at 4:30 and remained
until 5:30. And if the store had closed at 5:00, then his
remaining would be unlawful or unprivileged for the last
half hour—not just for an instant at 5:00 when the store
closed.
Petitioner’s contention (Br. 16) that an ordinary
reading of “remaining” would “render Taylor’s ‘unlawful entry’ language superfluous” is flawed in multiple
respects. As a threshold matter, it “makes the mistake
of reading an opinion (in truth part of an opinion) like a
statute.” United States v. Stitt, 860 F.3d 854, 878
(6th Cir. 2017) (en banc) (Sutton, J., dissenting), rev’d,
139 S. Ct. 399 (2018). The Court in Taylor articulated a
“generic” definition of “burglary,” 495 U.S. at 598, that
reflects “a compact version of standards found in many
states’ criminal codes,” Smith v. United States, 877 F.3d
720, 725 (7th Cir. 2017), cert. denied, 139 S. Ct. 783, and
139 S. Ct. 784 (2019). It was not itself writing a statute.
The generic definition applies “regardless of [the] exact
definition or label” a State uses, and reaches state laws
so long as they “substantially correspond” to that definition and have its “basic elements.” Taylor, 495 U.S.
at 599, 602. The antisurplusage canon of statutory construction therefore does not apply.
But even if it did, the ordinary meaning of “remaining” would not render “entry” superfluous. Petitioner
errs in asserting that “every unlawful entry with intent
17
would become ‘remaining in’ with intent as soon as the
perpetrator enters.” Pet. Br. 16 (citation omitted). An
“entry” for purposes of burglary law is ordinarily understood to occur “if,” for example, “any part of the actor’s person intruded, even momentarily, into the structure.” 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(b), at 467 (1986) (LaFave);
see 4 William Blackstone, Commentaries on the Laws of
England 227 (1769) (similar). The “entry” prong thus
parallels the common law of trespass by imposing liability the instant the defendant unlawfully crosses into the
structure, not after some period of delay, and liability
attaches to the intrusion regardless of whether the intruder’s entire body has entered. See Restatement
§§ 158, 163; cf. United States v. Jones, 565 U.S. 400, 405
(2012) (“[O]ur law holds the property of every man so
sacred, that no man can set his foot upon his neighbour’s
close without his leave; if he does he is a trespasser,
though he does no damage at all.”) (quoting Entick v.
Carrington, 95 Eng. Rep. 807, 817 (K.B. 1765)) (brackets in original). Deleting “entry” and referring only to
“remaining” would be incongruous and create ambiguity in situations where (1) the entry was only fleeting;
(2) the perpetrator abandoned his criminal intent immediately after entering; or (3) his entire body was never
actually inside the structure.
The offense conduct underlying petitioner’s own homeinvasion conviction illustrates the point. Petitioner was
intoxicated and assaulted his ex-girlfriend, who had a
restraining order against him, in a parking lot. PSR
¶ 51. “She ran to a group of people who took her inside
their apartment” to protect her. Ibid. Petitioner then
“attempted to climb through an open front window to
get at [her]”; he “broke the screen to the window” so
18
that “one arm, his head, and his upper torso were inside
the apartment”; and he grabbed a woman by the arm
before the apartment’s occupants pushed him away and
closed the window. Ibid. Petitioner then “kicked the
[front] door in and broke the lock,” but the occupants
managed to hold the door and petitioner fled when they
called the police. Ibid.
Petitioner plainly intended to commit a crime (assault) at the time he unlawfully “ent[ered]” the apartment by breaking the screen and reaching in through
the window. But it is far from clear that he “remain[ed]
in” the apartment—or was even fully “in” it at any
point—during the crime. The occupants managed to
prevent petitioner from ever getting his entire body
into the apartment, and his arm may have been inside
only fleetingly. Without a reference to “entry,” Taylor
would have risked excluding convictions under burglary
statutes that cover conduct of that sort. The need to
encompass such conduct is likely why no state legislature has ever chosen to draft a burglary statute to cover
only “remaining in” burglary. See pp. 19-25, infra.
Finally, assuming the antisurplusage canon applied
and some surplusage existed, the canon would not require interpreting a word unnaturally. See Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176 (2012) (“[A] court may well
prefer ordinary meaning to an unusual meaning that
will avoid surplusage.”); see also, e.g., Sullivan v.
Stroop, 496 U.S. 478, 482 (1990) (“If the statute is clear
and unambiguous, ‘that is the end of the matter.’ ”). Being somewhat repetitive or redundant does not turn one
word into another.
19
2. Legal authority at the time of the ACCA supports the
plain meaning of “remaining”
When assessing the meaning of “burglary” in the
ACCA, this Court has looked to state burglary laws in
place when Congress enacted the current version of the
ACCA in 1986, to the definition of “burglary” in the
original 1984 version of the ACCA, and to certain commentators. E.g., Stitt, 139 S. Ct. at 406; Taylor, 495 U.S.
at 593-599. As this Court already observed in defining
generic “burglary” to include “remaining * * * with intent, Taylor, 495 U.S. at 599, most States in 1986 had
“remaining in” burglary statutes and the 1984 version
of the ACCA covered “remaining in” burglary as well.
See 18 U.S.C. App. 1202(c)(9) (Supp. III 1985). To whatever degree Congress might have studied the issue, it
would have understood state laws criminalizing “remaining in” burglary to impose criminal liability consistent with the plain meaning of that phrase to refer to
a continuous period of time. A contrary definition that
referred only to an instant would not have been “generic,” Taylor, 495 U.S. at 598—and indeed would have
effectively broken new ground.
a. State burglary law indicated that criminal intent
could be formed while “remaining”
Contrary to petitioner’s contention (e.g., Br. 25)—
which is largely based on a survey that tries to answer
the wrong question, see Part C.1, infra—state burglary
law in 1986 supported the ordinary continuous meaning
of “remaining.” Reading ACCA burglary more narrowly would subvert Taylor by turning Congress from
a descriptor of then-current burglary law into a prognosticator of future burglary-law developments—and a
bad prognosticator at that.
20
i. The relevant universe for understanding “remaining in” burglary consists of the 29 States that, at the
time ACCA was enacted in 1986, prohibited “remaining
in” burglary. Of those jurisdictions, 27 had statutes
prohibiting “entering or remaining” with intent (or the
equivalent), and are thus substantially identical on their
face to Taylor’s formulation. See Ala. Code § 13A-7-7(a)
(1982); Alaska Stat. § 11.46.310(a) (1983); Ariz. Rev.
Stat. Ann. § 13-1506(A) (Supp. 1986); Ark. Stat. Ann.
§ 41-2002(1) (1977); Colo. Rev. Stat. § 18-4-203(1) (1986);
Conn. Gen. Stat. Ann. § 53a-103(a) (West 1972); Del.
Code Ann. tit. 11, § 824 (1979); Fla. Stat. ch. 810.02(1)
(1985); Ga. Code Ann. § 16-7-1(a) (Michie 1984); Haw.
Rev. Stat. § 708-810(1) (1985); Ill. Rev. Stat. ch. 38, para.
19-1(a) (1983); Iowa Code § 713.1 (1985); Kan. Stat. Ann.
§ 21-3715 (Supp. 1980); Ky. Rev. Stat. Ann. § 511.040(1)
(Michie 1985); Me. Rev. Stat Ann. tit. 17-A, § 401(1)
(West 1983); Minn. Stat. §§ 609.581(4), 690.582(3) (1986);
Mo. Rev. Stat. § 569.170(1) (1986); Mont. Code Ann.
§ 45-6-204(1) (1985); N.J. Stat. Ann. § 2C:18-2(a) (West
1982); N.Y. Penal Law § 140.20 (McKinney 1975);
N.D. Cent. Code § 12.1-22-02(1) (1985); Or. Rev. Stat.
§ 164.215(1) (1983); S.D. Codified Laws § 22-32-8 (1979);
Utah Code Ann. § 76-6-202(1) (1978); Vt. Stat. Ann.
tit. 13, § 1201(a) (Supp. 1982); Wash. Rev. Code.
§§ 9A.52.030(1), 9A.52.040 (1985); Wyo. Stat. Ann.
§ 6-3-301(a) (Supp. 1986).
A 28th State, Ohio, prohibited “trespass” with criminal intent, which encompasses both entry and remaining. Ohio Rev. Code Ann. § 2911.12(A) (Anderson Supp.
1985). And a 29th State, Texas, criminalized “remaining
in” burglary by prohibiting an unlawful entry followed
by the commission of a felony or theft while inside. Tex.
Penal Code Ann. § 30.02(a)(3) (West 1974); see LaFave
21
§ 8.13(b), at 468 & n.44 (listing Texas as a “remaining in”
jurisdiction).1 Federal law also included limited-purpose
provisions prohibiting entering or remaining with intent. See 18 U.S.C. 1752(a) (1982) (certain federal buildings); 18 U.S.C. 2118(b) (Supp. III 1985) (facilities relating to controlled substances).
Not one of those statutes indicated that, in contravention of the ordinary meaning of “remaining in,”
criminal liability was limited to situations in which the
intruder had the requisite intent at the initial moment
his remaining became unlawful, thereby excluding situations in which an intruder developed that intent while
remaining. Where a statute’s language directly addressed the issue—as Texas’s did—it explicitly criminalized such conduct. See Tex. Penal Code Ann.
§ 30.02(a)(3) (West 1974) (unlawful to “enter[] a building
or habitation and commit[] or attempt[] to commit a felony or theft”). And the other statutes simply used the
term “remaining” (or “trespass”) without any special
qualification that would suggest any departure from its
ordinary meaning. Congress accordingly would have
understood “remaining” (or the equivalent language) in
all of those statutes in its ordinary, continuous sense.
To the extent that Congress might have examined it,
state decisional law on point was fairly limited—but
would have reinforced the plain import of the statutes’
text. Only 7 of the 29 States had judicial decisions interpreting the duration of “remaining in” liability, and
none had squarely foreclosed liability where criminal
intent is formed after some initial moment of remaining.
To the contrary, courts in five States had held that in-
Mississippi also had a statute like Texas’s, see Miss. Code. Ann.
§ 97-17-25 (1973), but it had not been cited in any published decision.
1
22
tent may be formed “while the accused remains unlawfully.” Gratton v. State, 456 So. 2d 865, 872 (Ala. Crim.
App. 1984); see State v. Embree, 633 P.2d 1057, 1059
(Ariz. Ct. App. 1981); Keith v. State, 225 S.E.2d 719, 720721 (Ga. Ct. App. 1976); State v. Mogenson, 701 P.2d
1339, 1343-1345 (Kan. Ct. App. 1985); State v. Papineau,
630 P.2d 904, 906-907 (Or. Ct. App. 1981).
Courts in two additional states (Ohio and Illinois)
had come to conflicting or ambiguous conclusions and
thus had not resolved the question. See State v. Fontes,
721 N.E.2d 1037, 1039-1040 (Ohio 2000) (concluding that
intent may be formed while unlawfully remaining, and
resolving pre-1986 conflict between State v. Flowers,
475 N.E.2d 790, 791-792 (Ohio Ct. App. 1984), and State
v. Jones, 440 N.E.2d 580, 851 (Ohio Ct. App. 1981)); Pet.
Br. 34 (recognizing that law in Illinois was ambiguous);
compare People v. Boose, 487 N.E.2d 1088, 1091 (Ill. App.
Ct. 1985) (“A criminal intent formulated after a lawful
entry will satisfy the offense[] of * * * burglary by illegally remaining.”), with People v. Vallero, 378 N.E.2d 549,
549-550 (Ill. App. Ct. 1978) (stating that intent must exist at the time of entry to establish remaining in liability, where defendant was invited into building to apply
for a job and his authority to be present was never revoked), and Vallero, 378 N.E.2d at 551 (Stengel, J., specially concurring) (concluding that the defendant’s
presence was always lawful); see also People v. Bradford,
50 N.E.3d 1112, 1120 (Ill. 2016) (clarifying that a person
“remain[s] in a public place only where he exceeds his
physical authority to be on the premises.”).
ii. Against that backdrop, Congress would have expected the ACCA’s reference to “burglary,” which included “remaining in” burglary, Taylor, 495 U.S. at 599,
to encompass a natural understanding of “remaining.”
23
An “initial moment” requirement would have been an
alteration, not a “reflect[ion],” of “ ‘the generic sense in
which the term was used in the criminal codes of most
States.’ ” Stitt, 139 S. Ct. at 406 (quoting Taylor,
495 U.S. at 598) (brackets omitted). Nothing in Taylor,
any other decision of this Court, or the text or history
of the ACCA suggests that Congress intended the generic term “burglary” to impose novel and unstated restrictions on an ordinary understanding of “remaining
in” burglary.
Indeed, it would have been pointless and self-defeating
to include “remaining in” burglary in the generic definition, yet simultaneously to define that phrase more
narrowly and specifically than any state law would have
established at the time. Although purporting to include
“remaining in” burglary laws, such a definition would in
fact have excluded the “remaining in” burglary laws in
all six States to have clearly decided the scope of “remaining” (Alabama, Arizona, Georgia, Kansas, Oregon,
and Texas). And it would have done nothing to ensure
inclusion of the “remaining in” burglary laws of the
23 additional States in which the question remained
open (including the two that had conflicting or ambiguous precedent). Those States could well have followed
the others and applied their burglary statutes to impose
criminal liability in circumstances where intent is
formed while unlawfully “remaining in.”
Indeed, as it turns out, that is exactly what most
States have done. Today, three more States (32 total)
have “remaining in” burglary. See Mich. Comp. Laws
Ann. § 750.110a(4)(a) (West 2004); N.H. Rev. Stat.
Ann. § 635:1(I) (LexisNexis 2015); Tenn. Code Ann.
§ 39-14-402(a) (2018). Among those 32 States, a total of
18 explicitly allow (either by statute or judicial decision)
24
for intent to be formed at any point during the remaining: Eight States now have statutes that are explicit
about the continuous-remaining rule. See Colo. Rev. Stat.
§ 18-4-201(3) (2017); Del. Code Ann. tit. 11, § 829(d)
(2015); Haw. Rev. Stat. Ann. § 708-812.5 (LexisNexis
2016); Mich. Comp. Laws Ann. § 750.110a(4)(a) (West
2004); Minn. Stat. Ann. §§ 609.581(4), 609.582(3) (West
2018); Mont. Code Ann. § 45-6-204(1) (2017); Tenn. Code
Ann. § 39-14-402(a)(3) (2018); Tex. Penal Code Ann.
§ 30.02(a)(3) (West Supp. 2018). And a total of ten States
have judicial decisions to the same effect. See pp. 21-22,
supra (citing pre-1986 cases); Braddy v. State, 111 So. 3d
810, 844 (Fla. 2012) (per curiam); State v. Walker,
600 N.W.2d 606, 609 (Iowa 1999); State v. DeNoyer,
541 N.W.2d 725, 732 (S.D. 1995); State v. Rudolph,
970 P.2d 1221, 1228-1229 (Utah 1998); State v. Allen,
110 P.3d 849, 853-855 (Wash. Ct. App. 2005); see also Pet.
Br. 49-51 (classifying Ohio and Utah as ambiguous only
in respect to pre-1986 law). Only three States appear to
require that the intent coincide with the “initial moment” of remaining, and all have adopted that approach
in post-1986 decisions. See Shetters v. State, 751 P.2d 31,
36 (Alaska Ct. App. 1988); People v. Gaines, 546 N.E.2d
913, 915 (N.Y. 1989); In re J.N.S., 308 P.3d 1112, 11171118 (Or. Ct. App. 2013).2
Congress cannot be deemed to have guessed—
incorrectly—that after 1986, States would adopt a thennear-novel interpretation of “remaining in” burglary
that is limited to “initial moment” remaining. Cf. Stitt,
139 S. Ct. at 406-407. The 18 States that follow the majority rule have an estimated population of more than
Oregon courts thus switched their position on the issue, in response to intervening developments from the Oregon Supreme
Court. See In re J.N.S., 308 P.3d at 1118.
2
25
130 million people. See Population Div., U.S. Census
Bureau, Annual Estimates of the Resident Population:
April 1, 2010 to July 1, 2018 (Dec. 2018). Any or all of
the 11 additional States that prohibit “remaining in”
burglary, but have not yet explicitly addressed its
scope, could adopt the majority rule in the future. And
the 19 States that currently do not criminalize “remaining in” burglary might amend their burglary laws to do
so. Congress could not have been so agnostic about creating such a major hole in the ACCA’s coverage.
To the contrary, Taylor observed that only “[a] few
States’ burglary statutes * * * define burglary more
broadly” than ACCA’s generic definition. 495 U.S.
at 599. And “[w]here, as here, the applicability of a federal criminal statute requires a state conviction,” this
Court “ha[s] repeatedly declined to construe the statute
in a way that would render it inapplicable in many
States.” Stokeling v. United States, 139 S. Ct. 544, 552
(2019); see also United States v. Castleman, 572 U.S.
157, 167-168 (2014) (interpreting “physical force” to include common-law force, in part because a different
reading would render 18 U.S.C. 922(g)(9) “ineffectual in
at least 10 States”). Nothing supports narrowing the
generic definition of “burglary,” which includes “remaining in,” to include only a small minority of the
States that criminalize such burglary, based on a limitation that none of them had adopted in 1986.
b. The additional sources that Taylor consulted are consistent with the ordinary meaning of “remaining”
Not only had the States not articulated such a limitation, but neither had the other sources on which Taylor relied as guideposts. To the extent those sources
addressed the issue at all, they supported the ordinary
meaning of “remaining.”
26
i. An understanding of “remaining” as a continuous
activity is consistent with the definition of “burglary” in
the original 1984 version of the ACCA, which Congress
deleted (potentially inadvertently) in 1986. See Taylor,
495 U.S. at 589-590 & n.5. The 1984 version of the
ACCA 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.” 18 U.S.C.
App. 1202(c)(9) (Supp. III 1985). Although that definition excluded crimes where intent is formed after the
intruder’s presence is no longer surreptitious (see Pet.
Br. 17-18), it plainly encompassed burglaries in which
intent is formed while still surreptitiously remaining.
For example, imagine a person who lawfully enters a
store while it is open to the public, hides in a dressing
room intending to shelter there, and remains there surreptitiously after the store closes If while still secretly
inside the store the intruder decides to rob the cash register, he would “remain[] surreptitiously * * * with intent,” consistent with the plain language of the 1984 definition. 18 U.S.C. App. 1202(c)(9) (Supp. III 1985).
Nothing in the text of the 1984 definition suggested
that the intent must be formed at the instant the (surreptitious) remaining begins. If anything, this Court’s
precedents indicated that the term “remaining” would
not likely be interpreted that way. See Cores, 356 U.S.
at 408 (“[T]he crucial word ‘remains’ permits no connotation other than continuing presence.”); cf. Forest
Grove Sch. Dist. v. T. A., 557 U.S. 230, 239 (2009) (“Congress is presumed to be aware of an administrative or
judicial interpretation of a statute.”). And although
Taylor determined that the surreptitiousness requirement did not carry over to the 1986 version of the
27
ACCA, it described the 1984 and 1986 definitions as
“practically identical.” 495 U.S. at 598. That suggests
that “remaining” would have the same, presumably continuous, meaning.
ii. The two secondary sources Taylor consulted—
the 1986 version of Professor LaFave’s treatise on substantive criminal law and the Model Penal Code, see
495 U.S. at 580 & n.3, 593, 598 & n.8—do not suggest
otherwise. Neither described “remaining in” as a discrete event that occurs only when the defendant first
decides to stay in a building or structure. See LaFave
§ 8.13(b) and (e), at 468, 473-474 & n.101; Model Penal
Code § 221.1 cmt. 3, at 69-71 (1980).
The LaFave treatise’s discussion of “remaining in”
burglary merely states that “the requisite intent to
commit a crime” needed to “exist at the time the defendant unlawfully remained within.” § 8.13(b), at 468. That
reiterates the undisputed requirement that the intent
and the remaining be contemporaneous. But it does not
directly address the question here—whether remaining
is instantaneous or continuous, and thus whether intent
can be formed while remaining. The treatise lists jurisdictions with “remaining in” burglary, and the list includes all six of the jurisdictions (Alabama, Arizona,
Kansas, Georgia, Oregon, and Texas) that, as of 1986,
had attached liability to an intruder who formed the intent while remaining. See id. at 468 n.44. The treatise
thus contains no indication that “remaining in” was understood at the time to have anything other than its ordinary, continuous meaning, and in particular no indication that it was understood to be limited to petitioner’s
“initial moment” rule.
28
The Model Penal Code is even less illuminating, because its influence on “remaining in” burglary, as covered by the ACCA, is nonexistent. Although Taylor described its definition of burglary as “approximat[ing]”
the definition of “burglary” in the Model Penal Code,
495 U.S. at 598 n.8, the Taylor definition unambiguously
departed from the Model Penal Code in including “remaining in” burglary, id. at 598. The Model Penal Code
“does not include any ‘remaining in’ language at all.”
United States v. Herrold, 883 F.3d 517, 533 (5th Cir. 2018)
(en banc), petition for cert. pending, No. 17-1445 (filed
Apr. 18, 2018), and petition for cert. pending, No. 17-9127
(filed May 21, 2018). Instead, its drafters recommended
“reject[ing]” proposals to recognize remaining in burglary. Model Penal Code § 221.1 cmt. 3, at 71. But that
recommendation did not carry the day in a majority of
States, or in the ACCA. It thus says nothing about what
“remaining in” burglary means in the generic ACCA
definition.
B. The Normal Understanding Of “Remaining” Is The
Only Definition Consistent With The ACCA’s Design
Congress, like the majority of States at the time, had
good reason to include “remaining in” burglary in the
definition of generic burglary under the ACCA. Congress “viewed burglary as an inherently dangerous
crime,” Stitt, 139 S. Ct. at 406, and its dangers are in no
way tied to the esoteric issue of whether an intruder
formed the intent to commit a crime at the precise moment when his presence became unlawful, or instead
seconds or minutes later.
1. As this Court has explained, Congress in both
1984 and 1986 singled out burglary as an ACCA predicate because of the crime’s “inherent potential for harm
29
to persons.” Taylor, 495 U.S. at 588. Congress recognized that burglary “creates the possibility of a violent
confrontation between the offender and an occupant,
caretaker, or some other person who comes to investigate.” Stitt, 139 S. Ct. at 406 (quoting Taylor, 495 U.S.
at 588); see James v. United States, 550 U.S. 192, 203
(2007), overruled on other grounds by Johnson v. United
States, 135 S. Ct. 2551 (2015). And Congress viewed burglary as “one of the ‘most damaging crimes to society’
because it involves ‘invasion of [victims’] homes or workplaces, violation of their privacy, and loss of their most
personal and valued possessions.’ ” Taylor, 495 U.S.
at 581 (quoting H.R. Rep. No. 1073, 98th Cong., 2d Sess.
3 (1984)) (brackets in original).
Accordingly, this Court has repeatedly rejected efforts by defendants to inject “arcane distinctions” into
the term “burglary” that have “little relevance to modern law enforcement concerns,” and in particular have
no bearing on the risk of violent confrontation. Taylor,
495 U.S. at 593. For example, earlier this Term in Stitt,
this Court declined to interpret “burglary” to exclude
the burglary of a vehicle or other structure that is
adapted or used for overnight accommodation, reasoning that an offender’s unlawful entry into such a location
“runs a similar or greater risk of violent confrontation”
as compared to a traditional home. 139 S. Ct. at 406.
2. None of the factors that this Court has identified
as making burglary dangerous—the risk of a violent
confrontation, the defendant’s culpability, or the violation of personal privacy—depends on whether the intruder developed his criminal intent at the exact moment he was first unlawfully present or at some point
later while still unlawfully remaining inside. “The timing of when intent was formed implicates neither the
30
culpability of the perpetrator nor the extent of danger
to victims.” Herrold, 883 F.3d at 547 (Haynes, J., dissenting). Once the intruder is both (1) unlawfully present inside a structure and (2) has the requisite intent
to commit a crime, all of the practical concerns that led
Congress to include “burglary” as an ACCA predicate
apply with full force. At that point, the defendant is an
intruder into a private space; he is bent on committing
a crime; and a resident or other person who encounters
him is unlikely to know—or care—how long before the
encounter he hatched his criminal plan.
For example, imagine a person who is home alone
and is awoken in the middle of the night by the sound of
footsteps downstairs, and who gets up to investigate
and encounters an intruder in the dark who is in the
process of stealing a television. Such an intruder is no
mere trespasser; he has decided not only to enter someone’s home without permission, but also to commit a
crime while there. And when the homeowner encounters the intruder doing so, it is irrelevant whether the
intruder decided to steal the television before, during,
or after the time he first broke into the house. The victim’s terror and sense of invasion, the possibility that
the victim will defend himself or herself and the home
through violent force, and the possibility that the perpetrator will initiate violence when encountered, will all
be the same, regardless of how long before the encounter the intruder made up his mind to violate the law.
A distinction between intent formed at the instant
presence becomes unlawful and intent formed while unlawfully present would create arbitrary results that
have nothing to do with burglary’s inclusion as an
ACCA predicate. Imagine a woman invites her exboyfriend into her home, he makes unwanted advances,
31
and she demands that he leave and tries to kick him out.
Under either petitioner’s or the government’s approach, the ex-boyfriend is guilty of “remaining in” burglary if he refuses to leave and at the same time harbors
the intent to steal or destroy items that are hers, or to
sexually assault her. But under petitioner’s approach,
he would not be guilty of burglary if he developed precisely the same intent (or even completed the crime)
seconds or minutes later. The divergent treatment of
two functionally identical situations, where the seriousness and culpability of trespassing with the intent to
steal property or sexually assault a person in her own
home is exactly the same, makes little sense. And nothing in the ACCA or Taylor suggests that Congress distinguished between them.
3. Petitioner’s only suggestion (Br. 3, 53-55) as to
why Congress might have intended a cramped meaning
of “remaining” is to invoke a hypothetical hiker or
homeless person who commits a “low-risk, spur-of-themoment crime[] of opportunity, such as stealing clothing or food, while trespassing to seek shelter from the
cold.” But for several reasons, that hypothetical provides no support for a rule under which a burglar must
form the intent to commit a crime at the precise moment
his presence becomes unlawful.
First, petitioner provides no sound basis for deeming
such a burglary to be “low-risk.” “The main risk of burglary arises * * * from the possibility of a face-to-face
confrontation between the burglar and a third party—
whether an occupant, a police officer, or a bystander—
who comes to investigate.” James, 550 U.S. at 203.
Whoever comes to investigate will typically not know
that the intruder is a “hiker”; the intruder will simply
be a stranger who is unlawfully present and committing
32
a crime. Second, to the extent that the intruder’s identity as a hiker were known, his dangerousness would not
turn on whether he formed the intent to steal food at
the precise moment he broke in (because he was hungry
then) or formed it afterward (because he became hungry later). Either way, he is someone who is willing to
commit a crime in a private space where he has no right
to be, triggering the dangers inherent in burglary.
Third, this Court has long understood that Congress did
not expect every instance of an ACCA enumerated offense be violent. See id. at 208. Rather, Congress determined that such offenses are generally violent, and
thus made them ACCA predicates, irrespective of the
possibility of corner cases. See ibid. (discussing extortion). And Congress minimized the probability of misclassification by requiring the defendant to have not one
but three qualifying convictions, 18 U.S.C. 924(e)(1),
which are unlikely to all have occurred in unusual ways.
Finally, to the extent petitioner’s argument rests on
a concern that “remaining in” burglary covers conduct
that should be treated as less culpable than what he
might consider to be classic “burglary,” that concern
has no place in construing generic burglary under the
ACCA. Congress intended for “burglary” in the ACCA
to be descriptive, and “the contemporary understanding
of ‘burglary’ has diverged a long way from its commonlaw roots,” to the point that the “ ‘modern crime * * *
has little in common with its common-law ancestor except for the title of burglary.’ ” Taylor, 495 U.S. at 593
(citation omitted); see id. at 598. For example, States
have rejected commentators’ objections that eliminating
the surreptitiousness requirement would overbroaden
burglary. See, e.g., Model Penal Code § 221.1 cmt. 3, at
33
71; LaFave § 8.13(b), at 468. And petitioner’s own “initial moment” rule both includes conduct dissimilar from
traditional burglary (such as the ex-boyfriend who intends to assault his ex-girlfriend at the moment she
asks him to leave) and excludes conduct nearly identical
to traditional burglary (such as an intruder who breaks
into a house at night to get some rest, and moments
later develops the intent to commit theft). Accordingly,
even if petitioner’s normative concerns about the scope
of “burglary” were relevant, his rule would not address
them.
C. Petitioner’s “Initial Moment” Rule Is Unsupported And
Unsound
Petitioner identifies little basis for an abnormal interpretation of “remaining in,” under which “remaining” is ephemeral. For the most part, he emphasizes
the separate—and undisputed—requirement that the
burglar’s criminal intent be contemporaneous with his
“remaining in,” without addressing what “remaining in”
itself means. And adopting an unnatural interpretation
of ACCA burglary would undermine the clarity that
Taylor’s definition of “burglary” would otherwise provide, and encourage a morass of further litigation about
the meaning of the term.
1. Petitioner’s state survey is misguided
Petitioner devotes much of his brief (Br. 25-51) to an
exhaustive survey purporting to establish that, when
Congress amended the ACCA to its current form in
1986, a “substantial majority of states—at least 37—
retained a contemporaneous-intent requirement.” Pet.
Br. 26. That survey is both inapposite and inaccurate.
a. As a threshold matter, the stated goal of petitioner’s survey (Br. 25) is to identify state burglary laws
34
with a “contemporaneous-intent requirement.” But
that is not directly relevant to the question presented.
The result in this case does not depend on whether
ACCA burglary includes a “contemporaneous-intent requirement,” in the sense that the intruder must possess
the requisite intent at the same time he enters or remains. Everyone agrees that it does. The key question
is instead whether the defendant “remains” in a structure not just at the first moment he is inside, but for the
entire time that he stays inside, and therefore can develop his criminal intent while remaining.
Petitioner’s survey does not answer that question.
For example, his count of jurisdictions favoring his position mostly consists of the 22 jurisdictions that, in
1986, did not prohibit “remaining” at all and instead
prohibited only “entry.” See Cal. Penal Code § 459
(Deering 1985); D.C. Code Ann. § 22-1801(a) (1981);
Idaho Code § 18-1401 (Supp. 1981); Ind. Code Ann.
§ 35-43-2-1 (Burns Supp. 1984); La. Rev. Stat. Ann. § 14:62
(West 1986); Md. Ann. Code art. 27, § 30(a) (1982); Mass.
Gen. L. ch. 266, § 15 (1986); Mich. Comp. Laws § 750.110
(1981); Miss. Code Ann. § 97-17-19 (1973); Neb. Rev. Stat.
§ 28-507(1) (1985); Nev. Rev. Stat. Ann. § 205.060(1)
(Michie 1986); N.H. Rev. Stat. Ann. § 635:1(I) (1986);
N.M. Stat. Ann. § 30-16-3 (Michie 1978); N.C. Gen. Stat.
§ 14-51 (1986); Okla. Stat. Ann. tit. 21, § 1435 (West
1983); 18 Pa. Cons. Stat. Ann. § 3502(a) (1983); R.I. Gen.
Laws § 11-8-1 (1981); S.C. Code Ann. § 16-11-313(A)
(Law. Co-op. Supp. 1985); Tenn. Code Ann. § 39-3-401(a)
(1982); Va. Code Ann. § 18.2-89 (Michie 1982); W. Va.
Code Ann. § 61-3-11(a)-(b) (Michie 1977); Wisc. Stat.
Ann. § 943.10(1) (West 1982). But Taylor recognized that
Congress did not intend for “burglary” under the ACCA
to be limited to “entry” burglary, so the laws and court
35
decisions in those jurisdictions with that limitation shed
no meaningful light on what it means to “remain[] * * *
with intent.” 495 U.S. at 599.
b. Even when examining “remaining in” jurisdictions, petitioner’s methodology is flawed and inconsistent. Petitioner identifies (Br. 30-42, 44) 15 States
that prohibited “remaining in” burglary and that, according to him, defined such burglary in the manner he
proposes for the ACCA. But he identifies none that had
done so in 1986, when the ACCA was enacted.
For 5 of the 15 States (Alaska, Delaware, Hawaii,
Minnesota, and New York), petitioner relies (Br. 30, 3233, 37-38, 41) exclusively on post-1986 judicial decisions,
which had not yet been rendered when the ACCA was
enacted. For two others (Missouri and Vermont), petitioner identifies (Br. 38-39, 44) no judicial decision before or after 1986 addressing the relevant question.
For the other 8 of the 15 States (Arkansas, Colorado,
Connecticut, Illinois, Maine, Montana, New Jersey, and
North Dakota), petitioner relies (Br. 31-36, 39-42) mostly
on cases that merely hold that, to commit “entry” burglary, a person must possess the requisite intent at the
time of entry. The word “remain” does not even appear
in most of the pre-ACCA decisions that petitioner
cites from those jurisdictions. See Hickerson v. State,
667 S.W.2d 654, 655-656 (Ark. 1984) (unlawful entry of
house); People v. Barnhart, 638 P.2d 814, 816 (Colo.
App. 1981) (breaking and entering school); People v.
Weaver, 243 N.E.2d 245, 248 (Ill. 1968) (entry into store
“without authority” while still open), cert. denied,
395 U.S. 959 (1969); State v. Field, 379 A.2d 393, 395
(Me. 1977) (break-in of restaurant); State v. Pyron,
495 A.2d 467, 468 (N.J. Super. Ct. App. Div. 1985)
(forceful entry of apartment); see also Young v. State,
36
266 S.W.3d 744, 750 (Ark. 2007) (relying on Hickerson
for its understanding of “ent[ry],” but not invoking
Hickerson in connection with “remaining in”); Boose,
487 N.E.2d at 1091 (describing Weaver as a case only
about “entry” burglary). And in the few decisions
where it does appear, the reference to “remaining” is
clearly inapposite. See State v. Manthie, 641 P.2d 454,
456-457 (Mont. 1982) (finding sufficient evidence that
the defendant unlawfully “remained,” but not addressing whether intent may be formed while remaining);
Pet. Br. 42 (acknowledging that North Dakota decisions, including State v. Arne, 311 N.W.2d 186 (N.D.
1981), “have not addressed” the issue here).
Petitioner does cite (Br. 32-33) pre-1986 “remaining
in” burglary cases in Connecticut and Illinois, but they
address a different question from the one at issue here.
They hold that “remaining in” burglary occurs only
when the initial entry was lawful and the intruder overstays his welcome. See State v. Belton, 461 A.2d 973,
976 (Conn. 1983); People v. Green, 404 N.E.2d 930, 932
(Ill. App. Ct. 1980), abrogated in part on other grounds
by People v. Maggette, 747 N.E.2d 339 (Ill. 2001); see
also Arabie v. State, 699 P.2d 890, 894-895 (Alaska Ct.
App. 1985) (similar contemporaneous decision); cf.
Young, 266 S.W.3d at 744 (post-1986 decision); State v.
Edwards, 524 A.2d 648, 653 (Conn. App. Ct. 1987)
(same); Delgado v. State, 776 So. 2d 233, 238-241 (Fla.
2000) (per curiam) (same);3 Gaines, 546 N.E.2d at 915
(same). Such a holding does not presuppose, or dictate,
a requirement that criminal intent exist at the exact moment the defendant’s presence becomes unlawful. It is
Delgado also held that remaining must be surreptitious, but that
holding has been superseded by statute. See Sparre v. State, 164 So.
3d 1183, 1201 (Fla.) (per curiam), cert. denied, 136 S. Ct. 411 (2015).
3
37
equally consistent with the majority rule that intent
may be formed while “remaining.” See, e.g., Braddy,
111 So. 3d at 844 (Florida Supreme Court employing
majority rule on formation of intent in conjunction with
lawful-entry definition of “remaining”).
c. In addition, petitioner’s survey incorporates post1986 developments only when they are (assertedly)
helpful, while omitting such developments when they
are not. For example, petitioner relies (Br. 41) on a
1989 decision as the basis for classifying New York as
adopting the minority rule he favors. See Gaines,
546 N.E.2d at 915-916. But he asserts (Br. 49-51) that
the positions of Ohio and Utah were “[a]mbiguous”—
even though post-1986 decisions from their Supreme
Courts squarely adopted the majority rule. See Rudolph, 970 P.2d at 1228-1229; Fontes, 721 N.E.2d at
1039-1040. Similarly, petitioner relies (Br. 31-33) on
post-1986 decisions to categorize Colorado, Delaware,
and Hawaii as supporting his understanding of Congress’s intent in 1986. See Cooper v. People, 973 P.2d
1234, 1236 (Colo. 1999) (en banc); Dolan v. State,
925 A.2d 495, 501 (Del. 2007); State v. Mahoe, 972 P.2d
287, 291-293 (Haw. 1998). But legislatures in all three
States responded by abrogating those decisions and instead amending their burglary statutes to adopt the majority rule. See 1999 Colo. Sess. Laws 326-327; 76(2)
Del. Laws 115 (2007-2008); 2006 Haw. Sess. Laws 997.
Those jurisdictions thus would not support petitioner’s
position either in 1986 or today.
All in all, as noted earlier, see pp. 19-25, supra, petitioner’s “initial moment” rule requires an unnatural
reading of the word “remaining” that no State’s “remaining in” burglary statute has ever expressly suggested; the rule was rejected by six States before 1986;
38
petitioner does not identify any State that had adopted
it in 1986; and he has identified only three that do so
now, as opposed to 18 that endorse the broader rule.
See ibid. Even putting aside the anachronism of relying
on the legal landscape after the ACCA was enacted, it is
difficult to believe that Congress would have adopted
the three-State approach rather than the 18-State one.
2. Petitioner’s position overcomplicates Taylor and
invites substantial additional ACCA litigation
More fundamentally, it is difficult to believe that
Congress (in the pre-internet age) engaged in the exhaustive exercise that occupies 22 pages of petitioner’s
brief—or intended that courts called upon to interpret
the ACCA do so. Nor did this Court in Taylor appear
to anticipate that applying its definition of burglary
would involve resolving disputes at this level of granularity. Rather than countenancing such results, the easiest way to resolve the question presented in this case
is with a plain-English application of Taylor: “remaining in” means what “remaining in” ordinarily means, encompassing both the beginning and the continuation of
the period when a person stays inside. See, e.g., Cores,
356 U.S. at 408-409.
The question presented here is unlikely to be the last
arcane interpretive distinction of burglary (or another
enumerated offense) that a litigant might seek to advance. A straightforward interpretation of Taylor can
help to forestall further litigation that unrealistically
presumes congressional omniscience about state-court
decisions addressing every possible variant of burglary.
In enacting the ACCA, Congress drew a circle, not a
squiggle, around state burglary laws.
39
As the above discussion illustrates, States have not
always had decisional law addressing every possible aspect of burglary, have sometimes had conflicting decisional law, and have changed their law over the course
of time. Efforts to pinpoint state law on a particular
date are, of course, inevitable in the context of generic
offenses. But overly corrugated definitions of those offenses multiply the number of features that must be examined, and increase the likelihood of indeterminacy,
confusion, and conflicts in the federal courts.
Taylor counsels strongly against such an approach.
The Court in Taylor recognized that “exact formulations” of burglary “vary” among the States; viewed the
“omission of a definition of burglary” in the ACCA itself
to “impl[y], at most, that Congress did not wish to specify an exact formulation that an offense must meet in
order to count as ‘burglary’ ”; and gave that term a “generic meaning” with “basic elements” that a state offense could satisfy “regardless of its exact definition or
label.” 495 U.S. at 598-599. Nothing in Taylor invites
fine-grained distinctions, or conscripts courts into an increasingly complex and time-consuming role as the historical cartographers of state burglary law.
D. The Court Of Appeals Correctly Upheld Petitioner’s
Sentence
Under a plain reading of Taylor, petitioner’s prior
conviction for third-degree home invasion, in violation
of Mich. Comp. Laws Ann. § 750.110a(4)(a) (West Supp.
2001), is a conviction for “burglary.” As relevant here,
petitioner’s conviction required proof of (1) “break[ing]
and enter[ing] a dwelling or enter[ing] a dwelling without permission” and (2) “commit[ing] a misdemeanor”
while inside, ibid.—in petitioner’s case, “assault,” J.A. 25
(capitalization omitted) (charging document); see Mathis
40
v. United States, 136 S. Ct. 2243, 2249 (2016) (permitting
reference to charging document to determine elements
necessary for prior conviction). It thus “ha[s] the basic
elements,” Taylor, 495 U.S. at 599, of generic burglary.
Breaking or entering a dwelling is “unlawful or unprivileged entry into, or remaining in, a building or structure,”
and commission of assault requires “intent to commit a
crime.” Taylor, 495 U.S. at 599; see People v. Johnson,
284 N.W.2d 718, 718-719 (Mich. 1979) (assault requires
“either an intent to injure or an intent to put the victim in
reasonable fear or apprehension of an immediate battery”).4 In conjunction with his two other undisputed violent felony convictions (both for assault), petitioner qualifies for an ACCA sentence. Indeed, as the district court
concluded, he presents “the paradigm picture for somebody * * * that should fall within the [ACCA].” J.A. 74.
To the extent petitioner suggests (Br. 9) that a defendant could
be convicted of Michigan third-degree home invasion without ever
forming criminal intent, such an argument was neither pressed nor
passed on below and is not fairly encompassed within the question
presented in the petition. See Pet. I (seeking review of whether “it
is enough that the defendant formed the intent to commit a crime at
any time while ‘remaining in’ the building”). Although petitioner’s
merits brief (at I) reformulates the question presented, “[o]nly the
questions set out in the petition, or fairly included therein, will be
considered by the Court,” Sup. Ct. R. 14.1(a). In any event, such an
argument would lack merit. See, e.g., United States v. Bonilla,
687 F.3d 188, 193 (4th Cir. 2012) (“[P]roof of a completed or attempted felony necessarily requires proof that the defendant formulated the intent to commit a crime either prior to his unlawful
entry or while unlawfully remaining.”), cert. denied, 571 U.S. 829
(2013). Nor would the argument suggest a different result in petitioner’s own case, because the charging document required proof
that his burglary involved intent to commit an assault or the actual
commission of assault, which is a specific intent crime. See J.A. 25;
see also Mathis, 136 S. Ct. at 2249.
4
41
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
ZACHARY D. TRIPP
Assistants to the Solicitor
General
DAVID M. LIEBERMAN
Attorney
MARCH 2019
APPENDIX A
1.
18 U.S.C. 924 (2012) provides in relevant part:
Penalties
*
*
*
*
*
(e)(1) In the case of a person who violates section
922(g) of this title and has three previous convictions by
any court referred to in section 922(g)(1) of this title for
a violent felony or a serious drug offense, or both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person with
respect to the conviction under section 922(g).
(2)
As used in this subsection—
(A)
the term “serious drug offense” means—
(i) an offense under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951
et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more
is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent
to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more
is prescribed by law;
(1a)
2a
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for
such term if committed by an adult, 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; and
(C) the term “conviction” includes a finding that
a person has committed an act of juvenile delinquency involving a violent felony.
*
*
*
*
*
2. Mich. Comp. Laws Ann. § 750.110a (West Supp. 2001)
provides:
Definitions; breaking and entering a dwelling; crime of
home invasion, penalties
Sec. 110a.
(1)
As used in this section:
(a) “Dwelling” means a structure or shelter that is
used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter.
3a
(b) “Dangerous weapon” means 1 or more of the
following:
(i)
A loaded or unloaded firearm, whether operable or inoperable.
(ii) A knife, stabbing instrument, brass knuckles,
blackjack, club, or other object specifically designed or
customarily carried or possessed for use as a weapon.
(iii) An object that is likely to cause death or bodily
injury when used as a weapon and that is used as a
weapon or carried or possessed for use as a weapon.
(iv) An object or device that is used or fashioned in
a manner to lead a person to believe the object or device
is an object or device described in subparagraphs (i) to
(iii).
(c)
“Without permission” means without having
obtained permission to enter from the owner or lessee
of the dwelling or from any other person lawfully in possession or control of the dwelling.
(2) A person who breaks and enters a dwelling
with intent to commit a felony, larceny, or assault in the
dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters
a dwelling or enters a dwelling without permission and,
at any time while he or she is entering, present in, or
exiting the dwelling, commits a felony, larceny, or assault is guilty of home invasion in the first degree if at
any time while the person is entering, present in, or exiting the dwelling either of the following circumstances
exists:
4a
(a)
The person is armed with a dangerous weapon.
(b)
ing.
Another person is lawfully present in the dwell-
(3) A person who breaks and enters a dwelling with
intent to commit a felony, larceny, or assault in the
dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault
in the dwelling, or a person who breaks and enters a
dwelling or enters a dwelling without permission and, at
any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault is
guilty of home invasion in the second degree.
(4) A person is guilty of home invasion in the third
degree if the person does either of the following:
(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 permission and, at any time
while he or she is entering, present in, or exiting the
dwelling, commits a misdemeanor.
(b) Breaks and enters a dwelling or enters a dwelling without permission and, at any time while the person
is entering, present in, or exiting the dwelling, violates any
of the following ordered to protect a named person or
persons:
(i)
A probation term or condition.
(ii)
A parole term or condition.
(iii) A personal protection order term or condition.
5a
(iv) A bond or bail condition or any condition of pretrial release.
(5) Home invasion in the first degree is a felony
punishable by imprisonment for not more than 20 years
or a fine of not more than $5,000.00, or both.
(6) Home invasion in the second degree is a felony
punishable by imprisonment for not more than 15 years
or a fine of not more than $3,000.00, or both.
(7) Home invasion in the third degree is a felony
punishable by imprisonment for not more than 5 years
or a fine of not more than $2,000.00, or both.
(8) The court may order a term of imprisonment
imposed for home invasion in the first degree to be
served consecutively to any term of imprisonment imposed for any other criminal offense arising from the
same transaction.
(9) Imposition of a penalty under this section does
not bar imposition of a penalty under any other applicable law.
6a
APPENDIX B
State Burglary Statutes at the Time of
18 U.S.C. 924(e)(2)(B)(ii)’s Enactment
(Career Criminals Amendment Act of 1986,
Pub. L. No. 99-570, Tit. I, Subtit. I, § 1402,
100 Stat. 3207-39)*
Alabama:
Covered remaining
Burglary in the first degree.
(a) A person commits the crime of burglary in
the third degree if he knowingly enters or remains
unlawfully in a building with intent to commit a crime
therein.
Ala. Code § 13A-7-7(a) (1982).
Alaska:
Covered remaining
Burglary in the second degree.
(a) A person commits the crime of burglary in
the second degree if the person enters or remains
unlawfully in a building with intent to commit a crime
in the building.
Alaska Stat. § 11.46.310(a) (1983).
This appendix contains the text of each State’s statute providing
the baseline definition of burglary. This does not detail the various
degrees of burglary offenses in each State.
*
7a
Arizona:
Covered remaining
Burglary in the third degree; classification
A. A person commits burglary in the third degree by entering or remaining unlawfully in or on a
nonresidential structure or in a fenced commercial or
residential yard with the intent to commit any theft
or any felony therein.
Ariz. Rev. Stat. Ann. § 13-1506(A) (Supp. 1986).
Arkansas:
Covered remaining
Burglary.—
(1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another
person with the purpose of committing therein any
offense punishable by imprisonment.
Ark. Stat. Ann. § 41-2002(1) (1977).
Entry only
California:
Burglary
Every person who enters any house, room, apartment * * * with intent to commit grand or petit
larceny or any felony is guilty of burglary.
Cal. Penal Code § 459 (Deering 1985).
Colorado:
Covered remaining
Second degree burglary.
(1) A person commits second degree burglary, if
he knowingly breaks an entrance into, or enters, or
remains unlawfully in a building or occupied structure
8a
with intent to commit therein a crime against a person or property.
Colo. Rev. Stat. § 18-4-203(1) (1986).
Connecticut:
Burglary in the third degree:
Covered remaining
Class D felony
(a) A person is guilty of burglary in the third
degree when he enters or remains unlawfully in a
building with intent to commit a crime therein.
Conn. Gen. Stat. Ann. § 53a-103(a) (West 1972).
Delaware:
Burglary in the third degree:
Covered remaining
class D felony.
A person is guilty of burglary in the third degree
when he knowingly enters or remains unlawfully in a
building with intent to commit a crime therein.
Del. Code Ann. tit. 11, § 824 (1979).
District of Columbia:
Entry only
Definition and penalty.
(a) Whoever shall, either in the nighttime or in
the daytime, break and enter, or enter without breaking, any dwelling, or room used as a sleeping apartment in any building, with intent to break and carry
away any part thereof, or any fixture or other thing
attached to or connected thereto or to commit any
criminal offense, shall, if any person is in any part of
such dwelling or sleeping apartment at the time of
9a
such breaking and entering, or entering without breaking, be guilty of burglary in the first degree. * * *
D.C. Code Ann. § 22-1801(a) (1981).
Florida:
Covered remaining
Burglary.—
(1) “Burglary” means entering or remaining in a
structure or a conveyance with the intent to commit
an offense therein, unless the premises are at the
time open to the public or the defendant is licensed
or invited to enter or remain.
Fla. Stat. ch. 810.02(1) (1985).
Georgia:
Covered remaining
Burglary.
(a) A person commits the offense of burglary
when, without authority and with the intent to commit a felony or theft therein, he enters or remains
within the dwelling house of another or any building,
vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or
enters or remains within any other building, railroad
car, aircraft, or any room or any part thereof. * * *
Ga. Code Ann. § 16-7-1(a) (Michie 1984).
Hawaii:
Covered remaining
Burglary in the first degree.
(1) A person commits the offense of burglary in
the first degree if he intentionally enters or remains
unlawfully in a building, with intent to commit
10a
therein a crime against a person or against property
rights, and:
(a)
He is armed with a dangerous instrument in
the course of committing the offense; or
(b)
He intentionally, knowingly, or recklessly inflicts or attempts to inflict bodily injury on
anyone in the course of committing the offense; or
(c)
He recklessly disregards a risk that the building is the dwelling of another, and the building is such a dwelling.
Haw. Rev. Stat. § 708-810(1) (1985).
Entry only
Idaho:
Burglary defined.—
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn,
stable, outhouse, or other building, tent, vessel, closed
vehicle, closed trailer, airplane or railroad car, with
intent to commit any theft or any felony, is guilty of
burglary.
Idaho Code § 18-1401 (Supp. 1981).
Illinois:
Covered remaining
Burglary.
§ 19-1. Burglary. (a) A person commits burglary when without authority he knowingly enters or
without authority remains within a building, housetrailer, watercraft, * * * or any part thereof,
11a
with intent to commit therein a felony or theft.
* * *
Ill. Rev. Stat. ch. 38, para. 19-1(a) (1983).
Indiana:
Entry only
Burglary.—
A person who breaks and enters the building or
structure of another person, with intent to commit a
felony in it, commits burglary, a class C felony.
* * *
Ind. Code Ann. § 35-43-2-1 (Burns Supp. 1984).
Iowa:
Covered remaining
Burglary defined.
Any person, having the intent to commit a felony,
assault or theft therein, who, having no right, license
or privilege to do so, enters an occupied structure,
such occupied structure not being open to the public,
or who remains therein after it is closed to the public
or after the person’s right, license or privilege to be
there has expired, or any person having such intent
who breaks an occupied structure, commits burglary.
Iowa Code § 713.1 (1985).
Kansas:
Covered remaining
Burglary.
Burglary is knowingly and without authority entering into or remaining within any building, mobile
home, tent or other structure, or any motor vehicle,
aircraft, watercraft, railroad car or other means of
12a
conveyance of persons or property, with intent to
commit a felony or theft therein.
Kan. Stat. Ann. § 21-3715 (Supp. 1980).
Covered remaining
Kentucky:
Burglary in the third degree.—
(1) A person is guilty of burglary in the third
degree when, with the intent to commit a crime, he
knowingly enters or remains unlawfully in a building.
Ky. Rev. Stat. Ann. § 511.040(1) (Michie 1985).
Entry only
Louisiana:
Simple burglary
Simple burglary is the unauthorized entering of
any dwelling, vehicle, watercraft, or other structure,
movable or immovable, with the intent to commit a
felony or any theft therein, other than as set forth in
Section 60.
*
*
*
*
*
La. Rev. Stat. Ann. § 14:62 (West 1986).
Maine:
Covered remaining
Burglary
A person is guilty of burglary if he 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.
1.
Me. Rev. Stat Ann., tit. 17-A, § 401(1) (West 1983).
13a
Maryland:
Entry only
Breaking dwelling with intent to steal or commit felony.
(a) Every person, his aiders, abettors and counsellors, who shall break and enter any dwelling house
in the nighttime with the intent to steal, take or carry
away the personal goods of another of any value
therefrom shall be deemed a felon, and shall be guilty
of the crime of burglary.
Md. Ann. Code art. 27, § 30(a) (1982).
Massachusetts:
Entry only
Burglary, Not Being Armed, etc.
Section 15. Whoever breaks and enters a dwelling
house in the night time, with the intent mentioned in
the preceding section, or, having entered with such
intent, breaks such dwelling house in the night time,
the offender not being armed, nor arming himself in
such house, with a dangerous weapon, nor making an
assault upon a person lawfully therein, shall be
punished * * * .
Mass. Gen. L. ch. 266, § 15 (1986).
Michigan:
Entry only
Breaking and entering.
Sec. 110. Any person who shall break and enter
with intent to commit any felony, or any larceny
therein, any tent, hotel, office, store, shop, warehouse,
barn, granary, factory or other building, structure,
boat or ship, railroad car or any private apartment in
any of such buildings or any unoccupied dwelling
14a
house, shall be guilty of a felony punishable by
imprisonment in the state prison not more than
10 years. * * *
Mich. Comp. Laws § 750.110 (1981).
Covered remaining
Minnesota:
BURGLARY.
Subdiv. 3. Burglary in the third degree. Whoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor commits burglary in the third degree.
Minn. Stat. § 609.582(3) (1986).
DEFINITIONS.
Subdiv. 4. Enters a building without consent.
“Enters a building without consent” means:
(a) to enter a building without the consent of the
person in lawful possession;
(b) to enter a building by using artifice, trick, or
misrepresentation to obtain consent to enter from
the person in lawful possession; or
(c) to remain within a building without the consent of the person in lawful possession.
*
*
*
*
Minn. Stat. § 609.581(4) (1986).
*
15a
Entry only
Mississippi:
Burglary—breaking and entering dwelling.
Every person who shall be convicted of breaking
and entering any dwelling house, in the day or night,
with intent to commit a crime, shall be guilty of
burglary, and be imprisoned in the penitentiary not
more than ten years.
Miss. Code Ann. § 97-17-19 (1973).
Missouri:
Covered remaining
Burglary in the second degree.—
1. A person commits the crime of burglary in the
second degree when he knowingly enters unlawfully
or knowingly remains unlawfully in a building or
inhabitable structure for the purpose of committing
a crime therein.
Mo. Rev. Stat. § 569.170(1) (1986).
Montana:
Covered remaining
Burglary.
(1) A person commits the offense of burglary if
he knowingly enters or remains unlawfully in an
occupied structure with the purpose to commit an
offense therein.
Mont. Code Ann. § 45-6-204(1) (1985).
16a
Nebraska:
Entry only
Burglary; penalty
(1) A person commits burglary if such person
willfully, maliciously, and forcibly breaks and enters
any real estate or any improvements erected thereon
with intent to commit any felony or with intent to
steal property of any value.
Neb. Rev. Stat. § 28-507(1) (1985).
Nevada:
Entry only
Definition; punishent; venue.
1. Every person who, either by day or night,
enters any house, room, apartment, tenement, shop,
warehouse, store, mill, barn, stable, outhouse or
other building, tent, vessel, vehicle, vehicle trailer,
semitrailer or housetrailer, airplane, glider, boat or
railroad car, with intent to commit grand or petit
larceny, or any felony, is guilty of burglary.
Nev. Rev. Stat. Ann. § 205.060(1) (Michie 1986).
New Hampshire:
Entry only
Burglary.
I.
A person is guilty of burglary if he enters a
building or occupied structure, or separately secured
or occupied section thereof, with purpose to commit
a crime therein, unless the premises are at the time
open to the public or the actor is licensed or privileged to enter. * * *
N.H. Rev. Stat. Ann. § 635:1(I) (1986).
17a
Covered remaining
New Jersey:
Burglary
a.
Burglary defined. A person is guilty of burglary if, with purpose to commit an offense therein he:
(1) Enters a structure, or a separately secured
or occupied portion thereof, unless the structure was
at the time open to the public or the actor is licensed
or privileged to enter;
(2) Surreptitiously remains in a structure or a
separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.
N.J. Stat. Ann. § 2C:18-2(a) (West 1982).
Entry only
New Mexico:
Burglary.
Burglary consists of the unauthorized entry of any
vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.
*
*
*
*
*
N.M. Stat. Ann. § 30-16-3 (Michie 1978).
18a
Covered remaining
New York:
Burglary in the third degree
A person is guilty of burglary in the third degree
when he knowingly enters or remains unlawfully in a
building with intent to commit a crime therein.
*
*
*
*
*
N.Y. Penal Law § 140.20 (McKinney 1975).
North Carolina:
Entry only
First and second degree burglary.
There shall be two degrees in the crime of burglary as defined at the common law. If the crime be
committed in a dwelling house, or in a room used as a
sleeping apartment in any building, and any person
is in the actual occupation of any part of said dwelling
house or sleeping apartment at the time of the commission of such crime, it shall be burglary in the first
degree. If such crime be committed in a dwelling
house or sleeping apartment not actually occupied by
anyone at the time of the commission of the crime, or
if it be committed in any house within the curtilage of
a dwelling house or in any building not a dwelling
house, but in which is a room used as a sleeping
apartment and not actually occupied as such at the
time of the commission of the crime, it shall be
burglary in the second degree. * * *
N.C. Gen. Stat. § 14-51 (1986).
19a
North Dakota:
Covered remaining
Burglary.
1.
A person is guilty of burglary if he willfully enters or surreptitiously remains in a building or
occupied structure, or a separately secured or
occupied portion thereof, 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 as the case may be, with intent to commit a crime therein.
N.D. Cent. Code § 12.1-22-02(1) (1985).
Ohio:
Covered remaining
Burglary.
(A) No person, by force, stealth, or deception,
shall trespass in an occupied structure as defined in
section 2909.01 of the Revised Code, or in a separately
secured or separately occupied portion thereof, with
purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any
felony.
Ohio Rev. Code Ann. § 2911.12(A) (Anderson Supp.
1985).
Oklahoma:
Entry only
Burglary in the second degree—Acts constituting
Every person who breaks and enters any building
or any part of any building, room, booth, tent, railroad
car, automobile, truck, trailer, vessel or other structure or erection, in which any property is kept, or
20a
breaks into or forcibly opens, any coin-operated or
vending machine or device with intent to steal any
property therein or to commit any felony, is guilty of
burglary in the second degree.
Okla. Stat. Ann. tit. 21, § 1435 (West 1983).
Covered remaining
Oregon:
Burglary in the second degree.
(1) A person commits the crime of burglary in
the second degree if he enters or remains unlawfully
in a building with intent to commit a crime therein.
Or. Rev. Stat. § 164.215(1) (1983).
Pennsylvania:
Entry only
Burglary
(a)
Offense defined.—A person is guilty of bur-
glary if he enters a building or occupied structure, or
separately secured or occupied portion thereof, with
intent to commit a crime therein, unless the premises
are at the time open to the public or the actor is
licensed or privileged to enter.
18 Pa. Cons. Stat. Ann. § 3502(a) (1983).
Rhode Island:
Entry only
Burglary.—
Every person who shall commit burglary shall be
imprisoned for life or for any term not less than five
(5) years.
R.I. Gen. Laws § 11-8-1 (1981).
21a
Entry only
South Carolina:
Burglary; third degree.
(A) A person is guilty of burglary in the third
degree if the person enters a building without consent and with intent to commit a crime therein.
S.C. Code Ann. § 16-11-313(A) (Law. Co-op. Supp.
1985).
South Dakota:
Covered remaining
Third degree burglary defined—Felony.
Any person who enters or remains in an unoccupied structure, with intent to commit any crime
therein, is guilty of third degree burglary. * * *
S.D. Codified Laws § 22-32-8 (1979).
Tennessee:
Entry only
Burglary generally.—
(a) Burglary is the breaking and entering into a
dwelling house, or any other house, building, room or
rooms therein used and occupied by any person or
persons as a dwelling place or lodging either permanently or temporarily and whether as owner,
renter, tenant, lessee or paying guest, by night, with
intent to commit a felony.
Tenn. Code Ann. § 39-3-401(a) (1982).
22a
Covered remaining
Texas:
Burglary
(a) A person commits an offense if, without the
effective consent of the owner, he:
(1) enters a habitation, or a building (or any
portion of a building) not then open to the public,
with intent to commit a felony or theft; or
(2) remains concealed, with intent to commit
a felony or theft, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony or theft.
Tex. Penal Code Ann. § 30.02(a) (West. 1974).
Utah:
Covered remaining
Burglary.—
(1) A person is guilty of burglary if he enters or
remains unlawfully in a building or any portion of a
building with intent to commit a felony or theft or
commit an assault on any person.
Utah Code Ann. § 76-6-202(1) (1978).
Vermont:
Covered remaining
Burglary
(a) A person is guilty of burglary if he enters any
building or structure knowing that he is not licensed
or privileged to do so, with the intent to commit a
felony, petit larceny, simple assault or unlawful mischief. This provision shall not apply to a licensed or
privileged entry, or to an entry that takes place while
23a
the premises are open to the public, unless the person, with the intent to commit a crime specified in this
subsection, surreptitiously remains in the building or
structure after the license or privilege expires or
after the premises no longer are open to the public.
Vt. Stat. Ann. tit. 13, § 1201(a) (Supp. 1982).
Entry only
Virginia:
Burglary; how punished.—
If any person break and enter the dwelling house
of another in the nighttime with intent to commit a
felony or any larceny therein, he shall be guilty of
burglary, punishable as a Class 3 felony; provided,
however, that if such person was armed with a deadly
weapon at the time of such entry, he shall be guilty of
a Class 2 felony.
Va. Code Ann. § 18.2-89 (Michie 1982).
Washington:
Covered remaining
Burglary in the second degree.
(1) A person is guilty of burglary in the second
degree if, with intent to commit a crime against a
person or property therein, he or she enters or remains unlawfully in a building other than a vehicle.
Wash. Rev. Code. § 9A.52.030(1) (1985).
Inference of intent.
In any prosecution for burglary, any person who
enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime
24a
against a person or property therein, unless such
entering or remaining shall be explained by evidence
satisfactory to the trier of fact to have been made
without such criminal intent.
Wash. Rev. Code. § 9A.52.040 (1985).
West Virginia:
Entry only
Burglary; entry of of dwelling; outhouse; penalties.
(a) * * * If any person shall, in the nighttime,
break and enter, or enter without breaking, or shall,
in the daytime, break and enter, the dwelling house,
or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a felony or any
larceny therein, he shall be deemed guilty of burglary.
(b) If any person shall, in the daytime, enter
without breaking a dwelling house, or an outhouse
adjoin thereto or occupied therewith, of another, with
intent to commit a felony or any larceny therein, he
shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less
than one nor more than ten years.
W. Va. Code Ann. § 61-3-11(a)-(b) (Michie 1977).
25a
Entry only
Wisconsin:
Burglary
(1) Whoever intentionally enters any of the following places without the consent of the person in
lawful possession and with intent to steal or commit
a felony in such place is guilty of a Class C felony:
(a)
Any building or dwelling; or
(b)
An enclosed railroad car; or
(c)
An enclosed portion of any ship or vessel; or
(d) A locked enclosed cargo portion of a truck or
trailer; or
(e) A motor home or other motorized type of
home or a trailer home, whether or not any person is
living in any such home; or
(f )
A room within any of the above.
Wisc. Stat. Ann. § 943.10(1) (West 1982).
Wyoming:
Covered remaining
Burglary; aggravated burglary; penalties.
(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied
structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny
or a felony therein.
Wyo. Stat. Ann. § 6-3-301(a) (Supp. 1986).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.