Petition for Writ of Certiorari — Javontae Tyree Street, Petitioner v. United States

NO. _____________

In The

Supreme Court of the United States

-------------------------Ƈ-------------------------

JAVONTAE TYREE STREET,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

-------------------------Ƈ------------------------ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

-------------------------Ƈ-------------------------

PETITION FOR WRIT OF CERTIORARI

-------------------------Ƈ-------------------------

Jenna T. Blue

*Counsel of Record

BLUE LLP

205 Fayetteville Street

Raleigh, North Carolina 27601

(919) 833-1931

jenna@bluellp.com

Counsel for Petitioner

Dated: May 20, 2019

THE LEX GROUPDC i 1050 Connecticut Avenue, N.W. i Suite 500, #5190 i Washington, D.C. 20036

(202) 955-0001 i (800) 856-4419 i www.thelexgroup.com

i

QUESTION PRESENTED

Whether breaking or entering a nonpermanent or mobile structure that is not

adapted or used for overnight accommodation qualifies as the predicate offense of

“burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C.

§ 924(e)(2)(B)(ii).

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF AUTHORITIES ......................................................................................... iv

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISIONS INVOLVED .................................................................... 1

STATEMENT OF THE CASE ....................................................................................... 1

REASONS FOR GRANTING THE PETITION ............................................................ 4

A.

The Court of Appeals’ Holding Improperly Allows For The

Application Of ACCA’s Enhanced Punishment Based On Prior

Convictions For Breaking Or Entering Nonpermanent Or Mobile

Structures That Are Not Adapted Or Used For Overnight

Accommodation ........................................................................................ 4

B.

The Question Presented Provides An Ideal Opportunity To

Resolve An Issue Of Significant Relevancy And Impact ........................ 6

CONCLUSION............................................................................................................... 7

APPENDIX:

Unpublished Opinion of

The United States Court of Appeals

For the Fourth Circuit

entered February 19, 2019 ............................................................................... 1a

Judgment of

The United States Court of Appeals

For the Fourth Circuit

entered February 19, 2019 ............................................................................... 4a

Judgment in a Criminal Case of

The United States District Court

For the Middle District of North Carolina

entered April 26, 2018 ...................................................................................... 5a

iii

18 U.S.C. § 924 ........................................................................................................... 13a

N.C. Gen. Stat. § 14-54 .............................................................................................. 22a

iv

TABLE OF AUTHORITIES

CASES

Descamps v. United States,

570 U.S. 254 (2013) ............................................................................................. 2

Johnson v. United States,

135 S.Ct. 2551 (2015) .......................................................................................... 3

Mathis v. United States,

136 S.Ct. 2243 (2016) .............................................................................. 2, 4, 5, 6

State v. Batts,

173 N.C. App. 233 (2005) .................................................................................... 6

State v. Bost,

55 N.C. App. 612 (1982) ...................................................................................... 6

State v. Davis,

157 N.C. App 717 (2003) ..................................................................................... 6

Taylor v. United States,

495 U.S. 575 (1990) ................................................................................. 2, 4, 5, 6

United States v. Stitt,

139 S. Ct. 399 (2018) ..................................................................................passim

STATUTES

18 U.S.C. § 922(g)(1) ...................................................................................................... 2

18 U.S.C. § 924(e) ...................................................................................................... 2, 3

18 U.S.C. § 924(e)(1) ...................................................................................................... 1

18 U.S.C. § 924(e)(2)(B) ................................................................................................. 1

28 U.S.C. § 1254(1) ........................................................................................................ 1

N.C. Gen. Stat. §14-54(a)............................................................................................... 2

N.C. Gen. Stat. §14-54(c) ........................................................................................... 2, 5

1

OPINION BELOW

The opinion of the court of appeals is not published in the Federal Reporter,

but is reprinted at 756 Fed. Appx. 310, and reproduced in the appendix at App. 1a3a.

JURISDICTION

The court of appeals entered its judgment on February 19, 2019. See App. at

4a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reproduced in the appendix to this petition. See App. 13a-22a.

STATEMENT OF THE CASE

1. While a felon in possession of a firearm generally is exposed to a maximum term of imprisonment of ten years, the Armed Career Criminal Act (“ACCA”)

requires a mandatory minimum sentence of imprisonment for fifteen years if the

defendant previously has been convicted of three or more predicate offenses, namely

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

from one another[.]” 18 U.S.C. § 924(e)(1). “Violent felony” includes the enumerated offense of “burglary” if it is punishable by imprisonment for a term exceeding one

year[.]” 18 U.S.C. § 924(e)(2)(B).

ACCA does not define “burglary”. Instead, courts refer to a federal generic

definition to determine if a state conviction qualifies as this predicate offense. “To

determine whether a prior conviction is for generic burglary (or other listed crime)

2

courts apply what is known as the categorical approach: They focus solely on

whether the elements of the crime of conviction sufficiently match the elements of

generic burglary, while ignoring the particular facts of the case.” Mathis v. United

States, 136 S.Ct. 2243, 2248 (2016); see also United States v. Stitt, 139 S. Ct. 399,

405 (2018). “But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant

actually committed the offense in generic form. ” Descamps v. United States, 570

U.S. 254, 261 (2013).

The federal, generic definition of burglary is, “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a

crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). In North Carolina, “[a]ny

person who breaks or enters any building with intent to commit any felony or larceny therein” perpetrates felony breaking or entering under state law. N.C. Gen.

Stat. §14-54(a).

“Building” includes, “any dwelling, dwelling house, uninhabited

house, building under construction, building within the curtilage of a dwelling

house, and any other structure designed to house or secure within it any activity or

property. N.C. Gen. Stat. §14-54(c).

2. On October 5, 2017, Petitioner pled guilty to possessing a firearm as a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). The presentence investigation

report (“PSR”), prepared after Petitioner entered his guilty plea, concluded that he

had at least three prior convictions for violent felonies, and therefore was subject to

an enhanced sentence as an armed career criminal pursuant to 18 U.S.C. § 924(e).

3

In reaching this conclusion, the PSR relied on multiple prior convictions for the

North Carolina offense of breaking or entering.

At his sentencing hearing, Petitioner argued that an enhanced sentence

would be improper because North Carolina breaking or entering does not qualify as

“burglary” under ACCA’s enumerated offenses clause. He also argued that these

prior offenses cannot trigger ACCA under the now-void residual clause, pursuant to

Johnson v. United States, 135 S.Ct. 2551 (2015). 1

The court ultimately disagreed with Petitioner’s assertions, and concluded

that he was an armed career criminal based on his previous convictions. After application of the enhancement, Petitioner’s base offense level increased from 14 to 33.

In accordance with 18 U.S.C. § 924(e), the court imposed the mandatory minimum

sentence of a term of imprisonment for 180 months.

3. Petitioner timely appealed, and the court of appeals affirmed the district

court’s judgment. In so doing, the court recited the pertinent provisions of ACCA

and explained the categorical approach, before relying on Stitt to conclude:

In Mungro, we held that North Carolina breaking or entering

qualified as a violent felony under the ACCA. 754 F.3d at 272. Although Street contends Mungro does not apply because we focused our

analysis on the “unlawful entry” element and he argues that the

“building” element is broader than that of generic burglary, we reject

this argument and hold that North Carolina breaking or entering’s

“building” element sweeps no broader than generic burglary’s “building” element. See United States v. Stitt, 139 S. Ct. 399, 406-07 (2018).

1 Petitioner also filed a sentencing memorandum presenting these same arguments prior to the sen-

tencing hearing.

4

REASONS FOR GRANTING THE PETITION

A.

The Court of Appeals’ Holding Improperly Allows For The Application Of ACCA’s Enhanced Punishment Based On Prior Convictions

For Breaking Or Entering Nonpermanent Or Mobile Structures That

Are Not Adapted Or Used For Overnight Accommodation

This Court recently reasserted its requirement that state statutes defining

burglary be scrutinized under the categorical approach outlined in Taylor to determine if it does – or does not – qualify as generic burglary. See U.S. v. Stitt, 139 S.

Ct. 399, 405 (2018). It follows that generic burglary’s “building or other structure”

element is limited, and does not include every enclosure. For example, the statute

in Taylor that prohibits breaking and entering “any boat or vessel, or railroad car”

is broader than generic burglary. U.S. v. Stitt, 139 S. Ct. at 407 (citing Taylor, 495

U.S. at 599). Furthermore, the statute in Mathis criminalizing breaking and entering into, “any building, structure, … land, water or air vehicle, or similar place

adapted for overnight accommodation of persons [or used] for the storage or safekeeping of anything of value” also is more broad than generic burglary. U.S. v.

Stitt, 139 S. Ct. at 407 (citing Mathis v. United States, 136 S. Ct. at 2250).

The court of appeals in this case erred by expanding Stitt to validate its previous holding that generic burglary encompasses the North Carolina breaking or

entering statute. In Stitt, this Court held that generic burglary includes burglary of

a structure or vehicle that has been adapted or is customarily used for overnight accommodation. In so doing, this Court made clear that it was limiting its analysis to

the specific question in front of it – “whether coverage of vehicles designed or

adapted for overnight use takes the statute outside the generic burglary definition.”

5

Stitt, 139 S. Ct. at 407. The Stitt holding does not answer whether the North Carolina offense of breaking or entering is a predicate offense for ACCA purposes.

Furthermore, the reasoning in Stitt implies the opposite conclusion reached

by the court of appeals. North Carolina’s definition of “building” includes “any other

structure designed to house or secure within it any activity or property.” N.C. Gen.

Stat. § 14-54(c) (emphasis added). The language of the statute alone, like in Taylor

and Mathis, reflect the fatal overbreadth that this Court warned against.

In comparing the language of the statute in Taylor to the Stitt statute, this

Court explained:

[b]ut the statute [in Taylor] used the word “any”; it referred to ordinary

boats and vessels often at sea (and railroad cars often filled with cargo,

not people), nowhere restricting its coverage, as here, to vehicles or

structures customarily used or adapted for overnight accommodation.

The statutes before us, by using these latter words, more clearly focus

upon circumstances where burglary is likely to present a serious risk of

violence.”

Stitt, 139 S. Ct. at 407.

North Carolina’s definition of “building” is even more all-encompassing because it covers “any other structure” and “any activity or property”. Given this

broad language, the statute reaches an endless possibility of structures and activities – food trucks, mobile produce trucks, florist vehicles, ambulances, mobile barbershops, party transportation vehicles, mobile car detailing, mobile pet-grooming,

cleaning service vehicles, storage trailers, etc. North Carolina’s statute neither expresses nor alludes to any intention to cover just nonpermanent and mobile structures that are adapted or used for overnight accommodation. Moreover, the text of

6

North Carolina’s breaking or entering statute does not “focus upon circumstances

where burglary is likely to present a serious risk of violence.” Stitt,139 S. Ct. at

407.

This Court also discussed why the state law in Mathis was more broad than

generic burglary. That statute covered buildings, structures and vehicles used, “for

the storage or safekeeping of anything of value.” Stitt,139 S. Ct. at 407. Similarly,

North Carolina courts have interpreted “building” as encompassing a storage trailer

containing tools and equipment at a construction site (State v. Bost, 55 N.C. App.

612, 615 (1982)), a storage facility containing musical equipment (State v. Batts,

173 N.C. App. 233 at *3 (2005)), and a storage trailer containing store merchandise

(State v. Davis, 157 N.C. App 717 at *3 (2003)).

B.

The Question Presented Provides An Ideal Opportunity To Resolve

An Issue Of Significant Relevancy And Impact

Congress enacted ACCA to “supplement the States’ law enforcement efforts

against ‘career’ criminals”. Taylor v. U.S., 495 U.S. at 581. It is important for this

Court to continue interpreting ACCA, in particular defining the enumerated offense

of burglary, because “robbery and burglary are the crimes most frequently committed by these career criminals.” Id. The regularity with which this offense occurs

exacerbates the need for clarity in this context.

Furthermore, the problem of sentencing disparities and inconsistency among

courts in applying ACCA will continue to grow the longer these questions remain

unanswered. “Congress intended a ‘uniform definition of burglary [to] be applied to

all cases in which the Government seeks’ an enhanced sentence under the Act.”

7

Stitt, 139 S.Ct. at 405. Consistency and fairness are particularly important in these

cases due to the significant impact the ACCA enhancement usually has on the punishment imposed. The North Carolina breaking or entering statute provides an

ideal vehicle for this Court to offer guidance and clarity on this issue, and to promote parity for defendants being sentenced throughout the criminal justice system.

CONCLUSION

The petition for a writ of cert should be granted.

Respectfully submitted,

Jenna Turner Blue

Counsel for Petitioner

BLUE LLP

205 Fayetteville Street, Suite 300

Raleigh, North Carolina 27601

(919) 833-1931

jenna@bluellp.com

MAY 20, 2019