Petition for Writ of Certiorari — Lee Yerkes, Petitioner v. United States

NO.

____________

IN THE UNITED STATES SUPREME COURT

_________________ TERM

__________________________________________________________

LEE YERKES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Counsel for Petitioner

__________________________________________________________

QUESTIONS PRESENTED FOR REVIEW

When defining the scope of each element of “generic burglary” for purposes of the

Armed Career Criminal Act, 18 U.S.C. § 924(e) (the “ACCA”), this Court looks to how the

majority of states defined that element in 1986 when the ACCA was passed. Taylor v. United

States, 495 U.S. 575, 589 (1990); United States v. Stitt, 139 S. Ct. 399, 406 (2018); Quarles

v. United States, 139 S. Ct. 1872, 1878 (2019).

The Court has not yet defined the precise scope of the “entry” element. In a split

decision in this direct appeal, the Sixth Circuit acknowledged that Georgia defines the

“entry” element of its burglary statute more broadly than the common law and the majority

of states did in 1986 (and still do today) because it allows for conviction for conduct

constituting mere attempted burglary. The lower court nonetheless concluded that Georgia’s

more expansive form of burglary reflects only a “minor deviation” from the definition of

“generic” burglary, not enough to disqualify it from the ACCA’s coverage. The dissenting

judge, in contrast, would have held that this deviation is not minor at all, but reflects the

material difference between burglary and attempted burglary that this Court recognized in

James v. United States, 550 U.S. 192, 197 (2007) (overruled on other grounds by Johnson

v. United States, 135 S. Ct. 2551 (2015)), with attempted burglary qualifying only under the

now-defunct residual clause.

The question presented is this: Does Georgia burglary qualify as “generic burglary”

under the ACCA?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........................................................................... ii

TABLE OF CONTENTS ...................................................................................................... iii

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

OPINIONS BELOW ............................................................................................................... 1

JURISDICTIONAL STATEMENT ........................................................................................ 2

PRAYER FOR RELIEF…...…………………………...…………………………….……....3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3

STATEMENT OF THE CASE AND FACTS ...................................................................... 4

REASONS FOR GRANTING OF THE WRIT .................................................................... 9

ARGUMENT…………………………………...………………………….……………….14

I.

II.

Mr. Yerkes’s convictions for Georgia burglary are not “violent

felonies” because he could have committed them by merely

attempting a

burglary……………………………………………………………………..……...14

A.

Generic burglary requires an entry, not merely an

attempted entry……..………………………….…...………………………14

B.

Georgia follows the minority rule, such that a mere

attempt may be treated as a burglary…………….……..……………..…...20

C.

The Sixth Circuit’s rationale conflicts with James…………………….…..21

D.

Mr. Yerkes's convictions could be for what was nothing

more than an attempted burglary………….…………....……………….…23

This case is an excellent vehicle for addressing the contours of “entry”

and the Sixth Circuit’s new “close enough” approach to the ACCA…………..….23

CONCLUSION .................................................................................................................... 25

iii

TABLE OF AUTHORITIES

Page

Federal Court Cases:

Conkright v. Frommert, 556 U.S. 1401 (2009)……………….………………..……….……8

Descamps v. United States, 570 U.S. 254 (2013)……………….…………………...….…..14

Gilliam v. United States, 18-5050, R. 58-2 (6th Cir. June 19, 2020)………………….…….7

Indiana State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960

(2009)…………………………………………………………………………………8

James v. United States, 550 U.S. 1928 (2007)………..……………….…….…………passim

Johnson v. United States, 135 S. Ct. 2551 (2015)………..…….....................…........ii, 13, 14

Moncrieffe v. Holder, 569 U.S. 184 (2013)………………………………..……..……...…23

Morissette v. United States, 342 U.S. 246 (1952)……………………….………………….17

Quarles v. United States, 139 S. Ct. 1872 (2019)……………………..………..…ii, 9, 10, 15

Taylor v. United States, 495 U.S. 575 (1990)………………………………...……..…passim

United States v. Brown, 957 F.3d 679 (6th Cir. 2020)…………………………….……passim

United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en banc)……………………………23

United States v. Morris, 18-5183/18-5197, R. 63-2 (6th Cir July 17, 2020)……………..…..7

United States v. Prater, 766 F.3d 501 (6th Cir. 2014)………………………….……...…....14

United States v. Stitt, 139 S. Ct. 399 (2018)…………..….…………..…….……...ii, 9, 10, 15

United States v. Yerkes, 820 F. App’x 334 (2020)………………………….…….……passim

State Court Cases:

Commonwealth v. Burke, 467 N.E.2d 846 (Mass. 1984)………………………….…..…....16

Commonwealth v. Cotto, 752 N.E.2d 768 (Mass. App. 2001)…………………….……15, 16

iv

Foster v. State, 220 So.2d 406 (Fla. Dist. Ct. App. 1969)……………………….…..….…..18

Mattox v. State, 100 N.E. 1009 (Ind. 1913)………………………………….…….………..18

Meadows v. State, 590 S.E.2d 173 (Ga. Ct. App. 2003)……………………...……………..21

Mullinnix v. State, 338 S.E2d 752 (1985)………………………………..…………………20

People v. Davis, 279 N.E.2d 179 (Ill. Ct. App. 1972)…………………...……….…………18

People v. Osegueda, 210 Cal. Rptr. 182 (Cal. App. Dep't Super Ct. 1984)……...……..19-20

People v. Rhodus, 303 P.3d 109 (Colo. App. 2012)………………………………………..19

People v. Tragani, 449 N.Y.S.2d 923 (N.Y. Sup. Ct. 1982)……………………....……18, 22

Russell v. State, 255 S.W.2d 881 (Tex. Crim. App. 1953)………………………...……..…17

Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986)………….…………………..………18

Stamps v. Commonwealth, 602 S.W.2d 172 (Ky. 1980)……………………….….………..18

State v. Crawford, 80 N.W. 193 (N.D. 1899)…………………………………….…………18

State v. Crow, 517 S.W.2d 753 (Tenn. 1974)……………………………………….………19

State v. Faria, 60 P.3d 333 (Haw. 2002)……………………………………….….………..19

State v. Hodges, 575 S.W.2d 769 (Mo. Ct. App. 1978)…………………………..……..….18

State v. Liberty, 280 A.2d 805 (Me. 1971)……………………………………..…….…….18

State v. O’Leary, 107 A.2d 13 (N.J. 1954)……………………………………….…..……..18

State v. Sneed, 247 S.E.2d 658, 659 (N.C. App. 1978)……………………………………..18

State v. Tixier, 551 P.2d 987 (N.M. App. 1976)……………………………………….……19

State v. Williams, 873 P.2d 471 (Ore. App. 1994)……………………………….……..…..18

Walker v. State, 63 Ala. 49 (1879)…………………………………………………....…….18

v

Other Cases:

1William Hawkins, Pleas of the Crown 162 (6th ed. 1788)………………………………..16

Rex v. Hughes, 1 Leach 406, 407 (1785)……………………...………………….……..16, 17

Statutes:

18 U.S.C. § 922(g)(1)…………………………………...….………………….………...…..4

18 U.S.C. § 924(e) (the “ACCA”)……………………………….……..….…….…….passim

28 U.S.C. § 1254………………………………………………….….……….……………..2

11 Del. Code § 829(c)……………………………………….…………..………………….19

Ariz. Rev. Stat. Ann. § 13-1501….………………………….…………..…………….……19

Ga. Code Ann. § 16-7-1(a) (1980)……………………………………………………….3, 20

Nev. Rev. Stat. § 193.0145……………………………………….………….……………..18

Tex. Penal Code Ann. § 30.02….…………………………………...………..………….…19

Utah Code Ann. § 76-6-201…..……………….…………………..…………….…………19

Wash. Rev. Code § 9A.52.010(2)……………………………………….………………….18

Rules:

Supreme Court Rule 13……………………………………………...………………………2

Supreme Court Rule 29.4………………………………………………….………..……….2

Other Sources:

GAJICRIM 2.62.31 (Burglary; Entry—Amplified), Volume II:

Criminal Cases, 4th ed. (2019)………………………………………….………..20-21

Iowa Jury Instr.–Crim. § 1300.12……………………………….………………….………18

McClurg et al. v. United States, No. 20-6220, Joint Petition for Certiorari

(Oct. 30, 2020)………………………………………………………………........7, 24

vi

Okla. Uniform Jury Instr.–Crim. § 5-18……………………………..……………….…….18

Richard S. Culp et al., Is Burglary a Crime of Violence?

An Analysis of National Data 1998-2007 (2015)…………..….……………....…...12

Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3d ed. 1982)………….……….17-18

USSG App. C, amend. 798 (2016 Supp.) (Reason for Amendment)………………..….12, 22

Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law

§ 8.13 (1986)………………………………………………………………....…....16, 17

Wayne R. LaFave’s Substantive Criminal Law § 21.1 (2d ed. 2003)....................................19

vii

OPINIONS BELOW

1.

Opinion, United States Court of Appeals for the Sixth Circuit, United States v. Lee

Yerkes, 820 F. App’x 334 (July 10, 2020).

2.

Judgment, United States District Court for the Eastern District of Tennessee at

Chattanooga, 1:18-cr-38 (July 15, 2019).

1

JURISDICTIONAL STATEMENT

This is a direct appeal from the judgment in a criminal case. United States v. Yerkes,

820 F. App’x 334, 335 (6th Cir. 2020). 1 Lee Yerkes was sentenced under the Armed Career

Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(2)(B)(i), on July 15, 2019.

018.)

(App. at 012-

He appealed that judgment to the United States Court of Appeals for the Sixth

Circuit, arguing that the ACCA was wrongly applied.

Yerkes, 820 F. App’x at 335.

The

Sixth Circuit affirmed the district court. Id. at 339.

This Court's jurisdiction is invoked under Title 28, United States Code, Section

1254(1).

Pursuant to Rule 13 of the Supreme Court as modified by this Court’s March 19,

2020 Order regarding COVID-19, the time for filing a petition for certiorari review is

currently 150 days after the date of the lower court judgment.

Accordingly, this Petition is

timely filed.

Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor General of the

United States and to Assistant United States Attorney Debra A. Breneman, who appeared in

the United States Court of Appeals for the Sixth Circuit on behalf of the United States

Attorney’s Office, a federal office which is authorized by law to appear before this Court on

its own behalf.

1

A copy of this opinion is included in the appendix filed contemporaneously herewith at

pages App. 2 – App. 11.

2

PRAYER FOR RELIEF

Petitioner Lee Yerkes respectfully prays that a writ of certiorari issue to review the

order of the United States Court of Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The ACCA provides that a prior conviction qualifies as a “violent felony” if it is a

conviction for “burglary.” 18 U.S.C. § 924(e)(2)(B)(ii).

At the time of Mr. Yerkes’s Georgia burglary convictions, Georgia defined burglary

as:

[W]hen, 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) (1980).

3

STATEMENT OF THE CASE AND FACTS

This is a direct appeal from the judgment in a criminal case.

Mr. Yerkes pled guilty

to one count of being in possession of a firearm as a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1).

Yerkes, 820 F. App’x at 335.

Relying on five Georgia burglary convictions

and two Tennessee aggravated burglary convictions, the district court determined that he

qualified for application of the ACCA.

(Id.)

Mr. Yerkes objected to that classification,

arguing that generic burglary requires an individual to “enter” a premises by crossing the

barrier with either a body part, or an instrument—so long as the instrument is also used, or

intended to be used, in the commission of a further crime within. See id. at 335-36. (See

also Objections, R. 32, Page ID# 119-27; Sent. TR, R. 51, Page ID# 289-91.)

Without such an entry, he argued, the crime is merely attempted burglary.

(Objections, R. 32, Page ID# 120-123.) Because Georgia law allows the government to

prove “entry” when an individual merely crosses the threshold with an instrument used in a

failed attempt to gain access, it sweeps in mere attempted burglaries, and is thus broader

than “generic burglary” under the ACCA.

(Objections, R. 32, Page ID# 119-27; Sent. TR,

R. 51, Page ID# 289-91.) The district court denied Mr. Yerkes’ objection and sentenced

him to 180 months (15 years), the lowest sentence allowed by the ACCA’s mandatory

minimum.

(App. at 012-018.)

Mr. Yerkes timely appealed to the United States Court of Appeals for the Sixth

Circuit, again challenging the district court’s finding that his Georgia burglaries count as

“generic burglary” under the ACCA.

Yerkes, 820 F. App’x at 335-36.

The government

argued that “entry” in “generic burglary” extends to instruments used only in a failed effort

4

to gain access. (See Gov’t Br. at 20-26, App. R. 23.) But it affirmatively conceded that

Georgia’s definition of “entry” encompasses this broader view.

(Id. at 6, 19.)

In a divided opinion, the panel below affirmed. Relying wholesale on the Sixth

Circuit’s recent decision in United States v. Brown, 957 F.3d 679 (6th Cir. 2020), the panel

majority rejected Yerkes’s argument.

Yerkes, 820 F. App’x at 336-38.

It began by

explaining that under the common law, an “entry” is made when any part of the person, such

as a hand, or an instrument controlled by the person crosses the threshold of a structure.

Yerkes, 820 F. App’x at 336, 337. But, under the common law, “[i]f only an instrument

entered a home, by contrast, whether that entry sufficed depended on the reason for the

entry.” Id. (quoting Brown, 957 F.3d at 683). If the instrument is used to commit the

intended felony within, then it qualifies as an “entry” for the crime of burglary.

Id. (quoting

Brown, 957 F.3d at 683). (Mr. Yerkes refers to this narrow version of “entry” as the

“instrument-for-crime” view.) But, if the instrument is used only to commit the breaking,

i.e., only in a failed attempt to gain further access to the building, then an “entry” for

purposes of burglary did not occur. Id. (quoting Brown, 957 F.3d at 683). (Mr. Yerkes

refers to this broad version of “entry” as the “instrument-for-attempted-entry” view. 2)

Just as the Sixth Circuit had done in Brown, the panel majority acknowledged that in

1986 “the majority of jurisdictions that had examined this question . . . limited an entry by

instrument to the situation where the instrument is used to remove property from the

premises or injure or threaten an occupant.”

Id. at 337 (quoting Brown, 957 F.3d at 685).

2

Judge Moore referred to this broader view as the “any-instrument” view. However, for

clarity, undersigned refers to the broader view as “instrument-for-attempted-entry.”

5

It also acknowledged that the common law in 1986 similarly limited “entry” in this manner.

Id. at 336-37 (quoting Brown, 957 F.3d at 685).

Yet, despite this, and without

acknowledging James, 550 U.S. at 192 (“burglary” does not include attempted burglaries),

the panel majority held that Georgia’s divergent form of entry was merely a modest

deviation—no more than an “‘arcane distinction’ that Taylor would disavow.” Id. at 337

(quoting Brown 957 F.3d at 685).

It also theorized that the instrument-for-crime view and

the instrument-for-attempted-entry view both encompass a similar risk of a violent

encounter, which justified expanding “generic burglary” beyond the view of the common

law and the majority of states. Id. (quoting Brown 957 F.3d at 685).

It thus opined that

the generic definition of burglary under the ACCA, unlike the majority view of the states,

and unlike the common law view, is not limited to the instrument-for-crime variant.

Id. at

684-85.

Judge Moore dissented. She explained in detail how the majority erroneously applied

this Court’s well-established precedent when it broadly defined “generic burglary.” Id. at

339-46 (Moore, J., dissenting).

She also emphasized the majority’s failure to address, let

alone discuss, James when it concluded, contrary to James’s holding that “burglary” means

completed burglary, that Georgia’s divergent statute was close enough to the majority view

of entry.

She also criticized the majority’s erroneous reliance on the perceived risk of

violence in the two versions of burglary, emphasizing that Congress intended attempted

burglary to be covered by the now-defunct residual clause.

Id. at 342-44.

Judge Moore concluded that because Georgia’s burglary statute expands “entry” to

include circumstances when an instrument crosses the threshold in a failed attempt to gain

6

further admittance to the building, it includes mere attempted burglaries based on attempted

entries.

Id. at 344-45.

Because attempted burglary is not generic burglary, Judge Moore

concluded that Georgia’s burglary statute is overbroad and that Mr. Yerkes was wrongly

designated an Armed Career Criminal. Id. at 345-46.

During the same time period that Mr. Yerkes’s case was percolating through the

Sixth Circuit, that court addressed multiple cases dealing with generic burglary’s “entry”

element and whether “entry” under Tennessee law is broader.

In each of those cases the

Sixth Circuit held it was bound by prior case law to conclude that Tennessee’s aggravated

burglary statute is categorically generic. See Joint Petition for Certiorari at 8-11, McClurg

et al. v. United States, No. 20-6220 (Oct. 30, 2020).

The Sixth Circuit also often pointed

to the analysis in Brown as instructive. Mr. Brown sought en banc rehearing, and the Sixth

Circuit ordered the government to respond but ultimately denied rehearing, leaving the

Brown opinion intact.

Mr. Brown remains out of custody at this time, with a self-report

date in February of 2021, and will be filing a petition for certiorari review in the coming

months.

Undersigned is aware of two additional individuals whose cases raise this “entry”

argument and who remain out of custody.

In both instances the Sixth Circuit granted the

party’s motion to stay the mandate, Gilliam v. United States, 18-5050, R. 58-2 (6th Cir. June

19, 2020); United States v. Morris, 18-5183/18-5197, R. 63-2 (6th Cir July 17, 2020), which

requires a finding of “(1) a reasonable probability that four Justices will consider the issue

sufficiently meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect

that a majority of the Court will conclude that the decision below was erroneous; and (3) a

7

likelihood that irreparable harm will result from the denial of a stay.” Indiana State Police

Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960 (2009) (quoting Conkright v. Frommert,

556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers)).

These grants of the respective

motions to stay the mandate indicate the gravity of the issue at stake, and because Judge

Moore has laid out the better approach in her dissenting opinion below, Mr. Yerkes requests

certiorari review.

8

REASONS FOR GRANTING OF THE WRIT

The panel majority, the dissenting judge, and Mr. Yerkes all agree—the majority of

states in 1986 defined the “entry” element of burglary as requiring either (1) that a part of

the perpetrator’s body crossed the threshold, or (2) that an instrument alone crossed the

threshold, so long as the instrument is also used or intended to be used in a further crime

within.

Yerkes, 820 F. App’x at 337 (citing Brown, 957 F.3d at 685); id. at 342 (Moore, J.,

dissenting).

Yet, despite this acknowledgement that “the majority of jurisdictions that had

examined this question . . . limited an entry by instrument to the situation where the

instrument is used to remove property from the premises or injure or threaten an occupant,”

and despite its conclusion that by 1986 the common law also limited “entry” in this manner,

the panel majority concluded that “generic burglary” is not so limited. Id. at 336-37.

As

Judge Moore explained in detail in her dissenting opinion, that conclusion not only ignores

this Court’s clear, controlling precedent, but is also based on an erroneous assertion that the

difference between the two types of entry by instrument is insignificant, and an erroneous,

excessive, reliance on comparative levels of risk.

Id. at 342-44 (Moore, J., dissenting).

This Court has not yet defined the outer limits of what constitutes “entry” for generic

burglary under the ACCA.

But it has detailed—repeatedly—the method for discerning the

different contours of generic burglary. Taylor, 495 U.S. at 589, 598; Stitt, 139 S. Ct. at

406; Quarles, 139 S. Ct. at 1878; see also Yerkes, 820 F. App’x at 340 (Moore, J.,

dissenting).

Decades ago, this Court determined that “Congress meant by ‘burglary’ the

generic sense in which the term is now used in the criminal codes of most states.” Yerkes,

9

820 F. App’x at 340 (Moore, J., dissenting) (citing Taylor, 495 U.S. at 598 (emphasis

added)).

This “majority state view” approach requires the federal courts to define generic

burglary by looking to the definition of burglary adopted by a majority of the states in 1986,

at the time the ACCA was passed.

Id. at 340 (citing Taylor, 495 U.S. at 589 (“Congress,

at least at that time [1986] had in mind a modern ‘generic’ view of burglary, roughly

corresponding to the definitions of burglary in a majority of the States’ criminal codes”

(alteration and emphasis in Yerkes)).

This Court has continued to rely upon this “majority

state view” in its two most recent cases defining different elements of “generic burglary.”

Id. (citing Quarles, 139 S. Ct. at 1878 (addressing element of intent for remaining-in

burglary); Stitt, 139 S. Ct. at 406 (addressing the locational element)).

It is true, as noted by the panel majority below, that a state burglary statute need not

precisely track the wording of generic burglary, which requires: an “unlawful or unprivileged

entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor,

495 at 599; Yerkes, 820 F. App’x at 337.

However, this Court has never gone so far as to

define generic burglary in a way that is inconsistent with the majority view of the states from

1986.

See Taylor, 495 U.S. at 589, 598; Stitt, 139 S. Ct. at 406; Quarles, 139 S. Ct. at 1878;

see also Yerkes, 820 F. App’x at 340 (Moore, J., dissenting).

Despite the clear, consistent

line of authority from this Court, the panel majority below determined it was not bound to

define generic burglary by looking at the definitions in the majority of states in 1986.

Yerkes, 820 F. App’x at 337-39.

Instead, the panel majority expanded “generic burglary” to include the instrumentfor-attempted-entry view by concluding that the difference between the instrument-for10

crime view and the instrument-for-attempted-entry view is an “arcane distinction[]

embedded in the commonlaw definition [that] ha[s] little relevance to modern law

enforcement concerns.”

Id. at 337 (quoting Taylor, 495 U.S. at 593; and relying upon

Brown, 957 F.3d at 685).

But, as even the panel majority recognized, the distinction

between the two views of entry was not a mere arcane distinction embedded only in the

common law; it was also a distinction adopted by a majority of the states in their modern

codes in 1986.

The panel majority then justified its expansion of “generic burglary” by arguing that

the distinction between the two views had “no relevance” to Congress’ chief concern that a

burglary might result in a violent encounter. Id.

(citing Brown, 957 F.3d at 685).

But,

as Judge Moore explained in her dissenting opinion, that attempt overlooks this Court’s clear

holding in James which held that while the level of risk involved in attempted burglary might

equal or even surpass that inherent in completed burglary, such fact did not pull attempted

burglary into the definition of “generic burglary.”

Id. at 344.

was covered by the now-defunct residual clause.

Instead, attempted burglary

Id. (“these concerns [about

dangerousness] did not motivate Congress to include attempted burglary in the enumerated

offenses clause—instead, they motivated Congress to cover attempted burglary through the

residual clause” (citing James, 550 U.S. at 197, 209)).

Tellingly, the panel majority does not even mention James, nor attempt to reconcile

its broad holding with James.

And, “properly applying Taylor to discern the contours of

the entry element of generic burglary does not undermine congressional intent as to the

inclusion of burglary in the enumerated offenses clause.”

Id. (Moore, J., dissenting)

(emphasis added). Certainly, this Court has said that attempted burglary raises the same

11

specter of danger as a completed burglary, James, 550 U.S. at 203, 3 but that is no reason to

expand generic burglary beyond the majority state view (even more so when the common

law is consistent with the majority state rule).

The Sixth Circuit’s error requires the attention of this Court. Not only is it contrary

to this Court’s precedent, erroneously expanding the ACCA’s harsh reach, but if allowed to

stand, its new “close enough” analysis creates new uncertainty. What other crimes fail to

comport with the majority view in the states in 1986, but are “close enough” to qualify

anyway?

How do courts measure what is “close enough”? Where do courts draw that

line, except by their own imagined risk assessments? How can a person be on notice of

how a court will draw the line, and conduct themselves accordingly? This is particularly

concerning here, as the difference between an entry where the instrument is used in a further

3

Hindsight evidences that this belief was mistaken. The majority in James pointed to the

fact that the United States Sentencing Commission included burglary of a dwelling and

attempted burglary of a dwelling in its definition of “crime of violence.” James, 550 U.S. at

206-07. The Court explained that “‘[t]he Commission, which collects detailed sentencing

data on virtually every federal criminal case, is better able than any individual court to make

an informed judgment about the relation between’ a particular offense and ‘the likelihood of

accompanying violence.’” Id. (quotation omitted). Because of this expertise, this Court saw

the Commission’s view of burglary and attempted burglary “as further evidence that a crime

like attempted burglary poses a risk of violence similar to that presented by the completed

offense.” Id. at 207.

Tellingly, however, the Sentencing Commission has since removed burglary from its

“crime of violence” definition precisely because “burglaries rarely result in physical

violence”. USSG App. C, amend 798, at 122 (2016 Supp.) (Reason for Amendment) (citing

Richard S. Culp et al., Is Burglary a Crime of Violence? An Analysis of National Data 19982007 at xi, 29, 34, 36-38 (2015) (also finding that attempted burglaries are significantly less

likely to involve violence than completed burglary), available at

https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf Even in James, three members of

this Court cautioned that any confrontation that occurs during an attempted burglary “is

likely to consist of nothing more than the occupant’s yelling ‘Who’s there?’ from his

window, and the burglar’s running away.” James, 550 U.S. at 226 (Scalia, J., dissenting).

12

crime within the structure (the “instrument-for-crime” view), and an entry where the

instrument is used only in a failed attempt to gain admittance (the “instrument-for-attemptedentry” view) is an important one: It is the difference between a completed burglary and an

attempted one.

Id. at 343 (Moore, J., dissenting) (“The difference between the two is not a

distinction without a difference.”).

The residual clause, as it turns out, is inoperable because it is void for vagueness

(Johnson, 576 U.S. at 579), but that gives courts no license to reinterpret “generic burglary”

beyond what Congress intended under the enumerated offense clause, and certainly not via

an approach that depends on judicial imagination.

The Sixth Circuit, through its “close

enough” approach, reincarnates the constitutional flaws of the residual clause under a new

name.

The Court should grant certiorari review to address this overstep, and this case

presents the Court with an excellent vehicle.

13

ARGUMENT

I.

Mr. Yerkes’s convictions for Georgia burglary are not “violent felonies”

because he could have committed them by merely attempting a burglary.

To count as an ACCA predicate, a burglary conviction must satisfy any one of the

three clauses that comprise the ACCA’s definition of “violent felony.” With the allencompassing residual clause now struck down as unconstitutional (Johnson, 135 S. Ct. at

2563), and with the force clause inapplicable, (cf. United States v. Prater, 766 F.3d 501, 509

(6th Cir. 2014)), Mr. Yerkes’s burglary convictions count as ACCA predicates only if

Georgia burglary satisfies the enumerated offenses clause, which lists “burglary” but not

“attempted burglary” as a qualifying offense.

U.S. at 197.

18 U.S.C. § 924(e)(2)(B)(ii); see James, 550

Thus, to count as an ACCA predicate, one’s burglary conviction must be for

“generic burglary,” not merely attempted burglary. See James, 550 U.S. at 197

To determine whether Mr. Yerkes’s burglary convictions qualify as generic burglary,

the Court applies the “categorical approach.” Descamps v. United States, 133 S. Ct. 2276,

2281 (2013).

Under this approach, the Court compares the statutory elements of his

Georgia burglary convictions to the elements of generic burglary.

Id.

If the elements of

the Georgia burglary “are the same as, or narrower than, those of [generic burglary],” then

his conviction counts as a “violent felony” predicate under the ACCA.

does not.

Id.

Otherwise, it

Id. Here, the Georgia elements are broader than the generic elements, and so

those convictions do not count as generic burglaries.

A.

Generic burglary requires an entry, not merely an attempted

entry.

Under the ACCA, generic burglary is “an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S.

14

at 598.

Stitt addressed just one element of this generic definition:

the locational element,

i.e. the term “structure,” as that term meant when Congress enacted the ACCA in 1986.

Stitt, 139 S. Ct. at 405. More recently, this Court addressed yet another aspect of generic

burglary, looking to how the majority of states defined burglary in 1986.

Quarles, 139 S.

Ct. 1872 (holding that generic “remaining-in” burglary “occur[s] when the defendant forms

the intent to commit a crime at any time while unlawfully present in a building or structure”).

Generic burglary also requires an “entry,” an element unaddressed by Stitt, or

Qualres, or any prior case from this Court. According to the common law and a majority

of jurisdictions, an “entry” is made when any part of the person, such as a hand, crosses the

threshold of a structure. Yerkes, 820 F. App’x at 336; Commonwealth v. Cotto, 752 N.E.2d

768, 771 (Mass. App. 2001).

An “entry” may also be made when the person does not use

a part of their body, but only an instrument—such as a coat hanger or screwdriver—to cross

the threshold. Yerkes, 820 F. App’x at 336 (quoting Brown, 957 F.3d at 683).

But, as noted

by the panel majority below, “[i]f only an instrument entered a home, by contrast, whether

that entry sufficed depended on the reason for the entry.” Id. (quoting Brown, 957 F.3d at

683).

The majority view, and the view of the common law in 1986, is that if the person

used the instrument itself in an effort to commit the intended felony inside the structure (e.g.

used a coat hanger to snag an item), then an “entry” is made when only the instrument crosses

the threshold and thus a burglary is committed. Yerkes, 820 F. App’x at 336 (collecting

common law authority) and at 337 (acknowledging that the majority of statutes in 1986

limited entry to this view); see also id. at 341 (Moore, J., dissenting) (collecting state statutes

15

and cases from 1986).

As noted above, Mr. Yerkes refers to this as the “instrument-for-

crime” variant.

The minority view, in contrast, expands the definition of “entry” to situations where

the threshold was crossed with only an instrument, used only in a failed effort to gain

admittance (e.g., a screwdriver used to pry at the door). Yerkes, 820 F. App’x at 336, 337.

As also noted above, Mr. Yerkes will refer to this as the “instrument-for-attempted-entry”

variant, as this is only an attempted entry and thus attempted burglary is committed. Id. at

343 (Moore, J., dissenting).

This distinction started with the common law, which took the more restrictive,

instrument-for-crime approach. Brown, 957 F.3d at 688 (collecting cases and statutes, and

citing Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 8.13(b), at 467–68

(1986)); see also Yerkes, 820 F. App’x at 336 (“later cases held that if a person used an

instrument merely to undertake the ‘breaking’ and did not also use it to commit the additional

felony (for example, the person used a drill bit only to drill through a door), the entry of that

instrument alone did not suffice” (citing Rex v. Hughes, 168 Eng. Rep. 305 (1785); 1William

Hawkins, Pleas of the Crown 162 (6th ed. 1788))).

Under common law, “[i]n cases where only an instrument crossed the threshold of

the dwelling house, there is no entry where the instrument was used only for the breaking . .

. [h]owever, where the instrument is used to commit the felony within, there is an entry.”

Cotto, 752 N.E.2d. at 771 (summarizing common law sources); see Commonwealth v. Burke,

467 N.E.2d 846, 849 (Mass. 1984) (relying on common law to conclude that “if only an

instrument (e.g., a crowbar) intruded into this space, it must be proved that the instrument

was not only used for the purpose of facilitating the break, but that it also provided the means

16

‘by which the property was capable of being removed, introduced subsequent to the act of

breaking, and after that essential preliminary had been fully completed’”) (quoting Hughes,

1 Leach at 407) (emphasis in Hughes); Russell v. State, 255 S.W.2d 881, 884 (Tex. Crim.

App. 1953) (adhering to common-law rule as stated in Hughes).

In the Hughes case from 1785, the “accused had bored a hole through the panel of a

door; the point of the centrebit and some of the chips had entered the house, but nothing

more.” Russell, 255 S.W.2d at 884.

The court held that the intrusion was not enough to

be an “entry”:

The court there said that when one instrument is employed to break and is

without capacity to aid otherwise than by opening a way of entry, and another

instrument must be used, or the instrument used in the breaking must be used

in some other way or manner to consummate the criminal intent, the intrusion

of the instrument is not, of itself, an entry.

Id.

Thus, for example, under that common-law rule, when a defendant has crossed the

threshold with a tool while trying to pry open a door or window, he is guilty only of “an

attempt to commit the crime of burglary and not burglary itself.” Id.

As of 1986, when Congress enacted the ACCA, the vast majority of states defined

burglary as requiring an entry, without any statutory definition of “entry.” Because a court

should presume that an undefined statutory term comports with the common law, Morissette

v. United States, 342 U.S. 246, 263 (1952), it follows that the vast majority of states were

following the instrument-for-crime rule as of 1986.

Indeed, “[c]ontemporary

commentators recognized that the instrument-for-crime approach was the majority rule . . . .”

Yerkes, 820 F. App’x at 341 (Moore, J., dissenting) (citing Wayne R. LaFave & Austin W.

Scott, Jr., Substantive Criminal Law § 8.13(b) (1986); Rollin M. Perkins & Ronald N.

Boyce, Criminal Law 254–55 (3d ed. 1982) (“But in any event the rule became firmly

17

established that the insertion of a tool or instrument does not constitute an entry, within the

law of burglary, if it is used merely to effect a breaking.”)); see also Yerkes, 820 F. App’x at

337; accord Brown, 957 F.3d at 688.

Indeed, almost every single court that had interpreted “entry” by 1986 had endorsed

the common law’s instrument-for-crime rule, typically citing either the common law or one

of the many treatises stating that the blackletter rule is the instrument-for-crime rule. See

Yerkes, 820 F. App’x at 341 (Moore, J., dissenting) (explaining that “[i]n 1986, the majority

rule among the states was the instrument-for-crime approach; nineteen states had adopted

the instrument-for-crime approach and eight had adopted the [instrument-for-attemptedentry] approach,” and collecting cases); see also, e.g., State v. Hodges, 575 S.W.2d 769, 772

(Mo. Ct. App. 1978); People v Davis, 279 N.E.2d 179, 180 (Ill. Ct. App. 1972); State v.

Liberty, 280 A.2d 805, 808 (Me. 1971); State v. O’Leary, 107 A.2d 13, 15-16 (N.J. 1954);

Foster v. State, 220 So.2d 406, 407 (Fla. Dist. Ct. App. 1969); Mattox v. State, 100 N.E.

1009 (Ind. 1913); State v. Crawford, 80 N.W. 193, 194 (N.D. 1899); Walker v. State, 63 Ala.

49, 51 (1879); People v. Tragani, 449 N.Y.S.2d 923, 925-28 (N.Y. Sup. Ct. 1982) (“it must

be assumed that the drafters . . . envisioned . . . an adoption by the courts of common-law . .

. definitions of both bodily and instrumental entry”); see also Nev. Rev. Stat. § 193.0145

(1985); Wash. Rev. Code § 9A.52.010(2) (1985). 4

4

Before 1986, three additional states also indicated they would follow the instrument-forcrime rule:

State v. Sneed, 247 S.E.2d 658, 659 (N.C. App. 1978); Stamps v.

Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980); Sears v. State, 713 P.2d 1218 (Alaska Ct.

App. 1986). After 1986, three additional states clearly followed that rule, giving no reason

to think the rule was new: State v. Williams, 873 P.2d 471, 473-74 (Ore. App. 1994); Iowa

Jury Instr.–Crim. § 1300.12; and Okla. Uniform Jury Instr.–Crim. § 5-18. And, after 1986,

18

Accordingly, the leading modern treatise on the subject, Wayne R. LaFave,

Substantive Criminal Law—the treatise relied upon by the Brown panel, and by this Court

when defining “generic burglary” in the first place, see Taylor, 495 U.S. at 598—reports that

the instrument-for-crime rule is still the blackletter rule on burglary “entry.”

Id. § 21.1(b)

(2d ed. 2003); see also Brown, 957 F.3d at 688 (relying upon LaFave’s treatise).

Professor

LaFave explains:

If the actor . . . used some instrument which protruded into the structure, no

entry occurred unless he was simultaneously using the instrument to achieve

his felonious purpose. Thus there was no entry where an instrument was used

to pry open the building, even though it protruded into the structure; but if

the actor was also using the instrument to reach some property therein, then

it constituted an entry.

Id..

As of 1986, states deviating from that rule were few. By statute, four states had

defined “entry” against the grain, to include instrument-for-attempted-entry. 11 Del. Code

§ 829(c); Ariz. Rev. Stat. Ann. § 13-1501(3); Tex. Penal Code Ann. § 30.02(b); Utah Code

Ann. § 76-6-201(4).

Plus, as noted by Judge Moore in her dissent, just four courts had

interpreted “entry” to include instruments used for only attempted entries.

One was an

intermediate court of appeals in New Mexico that, after acknowledging the common-law

majority rule, simply announced that in its “opinion” an instrument-for-attempted-entry rule

was better. State v. Tixier, 551 P.2d 987, 989 (N.M. Ct. App. 1976).

The other states

were Tennessee in State v. Crow, 517 S.W.2d 753, 755 (Tenn. 1974); California in People

two additional states indicated they would follow that rule, with no hint the rule was new:

State v. Faria, 60 P.3d 333, 339 (Haw. 2002), and People v. Rhodus, 303 P.3d 109, 113

(Colo. App. 2012).

19

v. Osegueda, 210 Cal. Rptr. 182, 185-87 (Cal. App. Dep't Super Ct. 1984); and Georgia in

Mullinnix v. State, 338 S.E2d 752, 753 (1985).

B.

Georgia follows the minority rule, such that a mere attempt may be

treated as a burglary.

There was no disagreement between the parties below—the government

affirmatively argued that Georgia follows the instrument-for-attempted-entry view, such that

a mere attempted entry is sufficient to qualify as a Georgia burglary.

23, pages 6, 19).

(Gov’t Br., App. R.

At the time of Mr. Yerkes’s Georgia burglary convictions, the statute

defined burglary as:

[W]hen, 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) (1980).

State case law established that “Georgia law on

burglary does not require a breaking, but requires proof of entry . . . .”

S.E.2d at 753.

Mullinnix, 338

However, “entry” is sufficiently proven when an instrument (and not a body

part) crosses the threshold only in an effort to attempt entry. See id.

The Mullinnix court

explained that “[w]here as here a defendant ‘breaks the plane’ of the structure by removing

an alarm device with an instrument stuck in the door,” the government has sufficiently met

the “entry” element. Id.

The Georgia Court of Appeals did not require that the instrument

be used, or intended for use, in any further felony within.

See generally, id.

It was enough

that the instrument was used in an attempt to gain further access to the structure.

This understanding of “entry” under Georgia law remains controlling today.

current Georgia Suggested Pattern Jury Instructions explains the “entry” element as:

20

The

To constitute the offense of burglary, it is not necessary that it be shown that

a break-in occurred. To constitute “entry,” the evidence need only show a

““breaking of the plane” of the structure alleged by the defendant or by any

part of his/her body or by any instrument controlled by him/her.

GAJICRIM 2.62.31 (Burglary; Entry—Amplified), Volume II: Criminal Cases, 4th ed.

(2019).

As the legal support for this instruction, only one case is cited – Mullinnix.

See

also Meadows v. State, 590 S.E.2d 173, 178 (Ga. Ct. App. 2003) (citing the Mullinnix

definition of “entry” as prevailing law).

Thus, as the government concedes, in Georgia a

conviction could be sustained based on the broader, minority rule, the instrument-forattempted-entry view.

C.

(Gov’t Br., App. R. 23, pages 6, 19).

The Sixth Circuit’s rationale conflicts with James.

Even though the majority view in 1986 excluded the instrument-for-attempted-entry

view from the burglary definition, the panel majority concluded the distinction was

meaningless.

Yerkes, 820 F. App’x at 337 (citing Brown, 957 F.3d at 685).

But this

ignores the clear conceptual difference between attempted and completed burglaries, a

distinction that has been repeated by courts and treatises for centuries.

J., dissenting).

Id. at 343 (Moore,

Indeed, Congress and this Court have recognized that a completed burglary

and an attempted burglary are two different crimes. Id. Importantly, Congress rejected an

amendment to define the ACCA’s “violent felony” to include attempted burglary, thereby

restricting the enumerated offense clause in the ACCA to completed burglary.

550 U.S. at 200.

See James,

Attempted burglary simply does not qualify as a generic burglary.

Id. at

197; Yerkes, 820 F. App’x at 343 (Moore, J., dissenting).

What is more, James made it clear that the degree of dangerousness could not be of

controlling significance.

The James Court presumed that attempted burglary was at least

21

as dangerous, if not more dangerous, than a completed generic burglary.

Id. at 203-04.

But that degree of danger did not render the attempt offense a generic burglary since a federal

sentencing court’s task is to define “burglary” as understood by Congress in 1986, not to

classify as “burglary” any dangerous crime that is similar. See id. at 197; see also Yerkes,

820 F. App’x at 344 (Moore, J., dissenting).

Completed burglary of whatever sort is not

the same offense as attempted burglary.

Yerkes, 820 F. App’x at 344 (Moore, J.,

dissenting).

That distinction is “common-sense.” Tragani, 449 N.Y.S.2d at 926.

James instead establishes that attempts that are as dangerous as burglary are covered

by the residual clause.

550 U.S. at 197, 202-04; see Taylor, 495 U.S. at 600 n.9 (explaining

the residual clause might cover break-in crimes falling beyond scope of “burglary”); Yerkes,

820 F. App’x at 344 (Moore, J., dissenting) (concerns about the dangers of attempted

burglary “did not motivate Congress to include attempted burglary in the enumerated

offenses clause—instead, they motivated Congress to cover attempted burglary through the

residual clause”).

The residual clause is now gone, but James’s interpretation of “burglary”

remains binding.

Congress justifiably wanted to incapacitate the most dangerous

individuals who had proven by their prior conduct that they are willing to repeatedly engage

in intentional violence.

But, typical burglaries and attempted burglaries do not involve

such violence.

Congress’s belief that burglary, is “inherently dangerous,” has since been proven

false—a fact that caused the United States Sentencing Commission to remove burglary

crimes from its career offender enhancement.

Supp.) (Reason for Amendment).

USSG App. C, amend 798, at 118-22 (2016

Erroneous presumptions about the inherent

22

dangerousness of burglary are not sufficient to read into generic burglary attempts, when

that was not the majority view of burglary in 1986—when it was not the intent of Congress.

D.

Mr. Yerkes’s convictions could be for what was nothing more

than an attempted burglary.

“[S]entencing courts must ‘presume that the conviction rested upon nothing more

than the least of the acts criminalized.’” United States v. Burris, 912 F.3d 386, 406 (6th Cir.

2019) (en banc) (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)).

As shown

above, the “least of the acts criminalized” by the Georgia burglary statute is the act of

sticking an instrument through a door frame in a failed effort to pry it open—that is, the act

of attempting a burglary without making a generic “entry.” Therefore, sentencing courts

must presume that a conviction for Georgia burglary rested upon nothing more than an

attempted burglary.

Sentencing courts must, in other words, presume that a conviction for

Georgia burglary is not a generic burglary. See James, 550 U.S. at 198.

In sum, Georgia’s unusually broad definition of “entry” renders its burglary statute

overbroad.

Mr. Yerkes’s convictions do not qualify as generic “burglary” convictions.

He is wrongly serving a sentence based on the ACCA’s fifteen-year mandatory minimum.

II.

This case is an excellent vehicle for addressing the contours of “entry” and

the Sixth Circuit’s new “close enough” approach to the ACCA.

This direct appeal presents an excellent vehicle for the Court to review the question

presented.

Mr. Yerkes raised and preserved the question of the scope of the “entry”

element of generic burglary in the district court, and the Sixth Circuit squarely addressed it.

Everyone agreed in the court below that Georgia uses the broader instrument-for-attemptedentry view of “entry” in its burglary statute, so that the only question at issue here is whether

23

“generic burglary” includes a view of “entry” broader than that of the common law and the

majority of states in 1986.

Nor will the issue resolve on its own. Through its holding below and its denial of en

banc rehearing in Brown the Sixth Circuit has made clear that it will not reevaluate its

conclusion that Georgia’s “entry” element is “close enough” to the generic “entry” element,

and that it will continue to apply its new “close enough” approach to the enumerated

offenses. Yerkes, 820 F. App’x at 338 (relying on Brown, 957 F.3d at 685-87); see also

Joint Petition for Certiorari at 8-11, McClurg et al. v. United States, No. 20-6220. As it

stands, only this Court can resolve the question.

Finally, a decision holding that a burglary statute using the broader instrument-forattempted-entry form of “entry” does not qualify as generic burglary would mean that Mr.

Yerkes is entitled to relief on the merits. He would not be subject to the ACCA’s statutory

fifteen-year minimum, but would instead be subject only to a ten-year maximum.

presents the ideal opportunity to resolve this extremely important question.

24

This case

CONCLUSION

In consideration of the foregoing, Mr. Yerkes respectfully submits that the petition

for certiorari should be granted, the order of the Sixth Circuit Court of Appeals vacated, and

the case remanded for resentencing.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:_ /s/ Erin Rust

Erin P. Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

25