Petition for Writ of Certiorari — David Earl Brown, Petitioner v. United States

Supreme Court briefDec 11, 2020

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NO.

____________

IN THE UNITED STATES SUPREME COURT

_________________ TERM

__________________________________________________________

DAVID EARL BROWN,

Petitioner,

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

Attorney for Mr. Brown

QUESTIONS PRESENTED FOR REVIEW

Does Tennessee’s aggravated burglary statute, which defines “entry” so

broadly as to encompass mere attempted burglary, qualify as a “generic

burglary” under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (the

“ACCA”)?

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 .............................. 4

STATEMENT OF THE CASE AND FACTS ...................................................................... 5

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

ARGUMENT…………………………………...…………………….…………………….11

Mr. Brown’s convictions for Tennessee aggravated burglary are not “violent felonies”

because he could have committed them by merely attempting a burglary.…….………….11

Generic burglary requires an entry, not merely an

attempted entry……..………………………….…...………….…….……..11

Tennessee follows the minority rule, such that a mere

attempt may be treated as a burglary…………….……..………….….…...17

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

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

more than an attempted burglary………….…………....……………….…22

CONCLUSION .................................................................................................................... 24

iii

TABLE OF AUTHORITIES

Page

Federal Court Cases:

Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019)……………………………………………6

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

Descamps v. United States, 570 U.S. 254 (2013)……………….…………………...….…..11

Gilliam v. United States, 18-5050, R. 58-2 (6th Cir. June 19, 2020)………………….…….8

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)………..……........................…........2, 5, 11

Moncrieffe v. Holder, 569 U.S. 184 (2013)………………………………..……..……...…22

Morissette v. United States, 342 U.S. 246 (1952)……………………….………………….14

Quarles v. United States, 139 S. Ct. 1872 (2019)………………..…..…..………..…9, 10, 12

Taylor v. United States, 495 U.S. 575 (1990)……………………….……9, 10, 11-12, 16, 21

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)……………………………22

United States v. Moore, 578 F. App’x 550 (6th Cir. 2014)…………………..…………….17

United States v. Morris, 18-5183/18-5197, R. 63-2 (6th Cir July 17, 2020)…………………………8

United States v. Nance, 481 F.3d 882 (6th Cir. 2007)………………………………..………………6

United States v. Prater, 766 F.3d 501 (6th Cir. 2014)………………………….……...…....11

United States v. Stitt, 139 S. Ct. 399 (2018)…………..….……………...……..5-6, 9, 10, 12

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

State Court Cases:

Bailey v. State, 231 A.2d 469 (Del. 1967)……………………………….………………….20

Commonwealth v. Burke, 467 N.E.2d 846 (Mass. 1984)………………………….…..…....13

Commonwealth v. Cotto, 752 N.E.2d 768 (Mass. App. 2001)…………………….……12, 13

Ferguson v. State, 530 S.W.2d 100 (Tenn. Crim. App. 1975)………………………..……………..19

Foster v. State, 220 So.2d 406 (Fla. Dist. Ct. App. 1969)……………………….…..….…..15

Hall v. State, 584 S.W.2d 819 (Tenn. Crim. App. 1979)…………………………………………….20

Hayes v. State, 656 S.W.2d 926 (Tex. Ct. App. 1983)……………………..………………20

Mattox v. State, 100 N.E. 1009 (Ind. 1913)………………………………….…….………..15

Mullinnix v. State, 338 S.E2d 752 (1985)………………………………..…………………17

People v. Davis, 279 N.E.2d 179 (Ill. Ct. App. 1972)…………………...……….…………15

People v. Osegueda, 210 Cal. Rptr. 182 (Cal. App. Dep't Super Ct. 1984)……...……..16-17

People v. Rhodus, 303 P.3d 109 (Colo. App. 2012)………………………………………..16

People v. Tragani, 449 N.Y.S.2d 923 (N.Y. Sup. Ct. 1982)……………………....……15, 21

Russell v. State, 255 S.W.2d 881 (Tex. Crim. App. 1953)………………..……...…13-14, 20

Sears v. State, 713 P.2d 1218 (Alaska Ct. App. 1986)………….…………………..………15

Stamps v. Commonwealth, 602 S.W.2d 172 (Ky. 1980)……………………….….………..15

State v. Crawford, 80 N.W. 193 (N.D. 1899)…………………………………….…………15

State v. Crow, 517 S.W.2d 753 (Tenn. 1974)………………………………………17, 18-19

State v. Faria, 60 P.3d 333 (Haw. 2002)……………………………………….….………..16

State v. Hodges, 575 S.W.2d 769 (Mo. Ct. App. 1978)…………………………..……..….15

State v. Liberty, 280 A.2d 805 (Me. 1971)……………………………………..…….…….15

State v. O’Leary, 107 A.2d 13 (N.J. 1954)……………………………………….…..……..15

State v. Moore, 1990 Tenn. Crim. App. LEXIS 96 (Tenn. Crim. App. Feb. 7, 1990)……………….20

State v. Sneed, 247 S.E.2d 658, 659 (N.C. App. 1978)……………………………………..15

State v. Summers, 1990 Tenn. Crim. App. LEXIS 681 (Tenn. Crim. App. Oct. 10, 1990)……..…..20

State v. Tixier, 551 P.2d 987 (N.M. App. 1976)……………………………………….……16

State v. Williams, 873 P.2d 471 (Ore. App. 1994)……………………………….……..…..15

Walker v. State, 63 Ala. 49 (1879)…………………………………………………....…….15

Other Cases:

Rex v. Hughes, 1 Leach 406, 407 (1785)……………………...………………….……..13-14

Statutes:

18 U.S.C. § 922(g)(1)…………………………………...….………………….………...…..5

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

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

28 U.S.C. § 2255………………………………….………………………………………2, 5

11 Del. Code § 829(c)…………………………….………..….…………..……………16, 20

Ariz. Rev. Stat. Ann. § 13-1501….……………………..…….…………..…………….16, 20

Nev. Rev. Stat. § 193.0145……………………………………….………….……………..15

Tenn. Code Ann. § 39-14-401………………………………..……..………...……..…..4, 18

Tenn. Code Ann. § 39-14-402……………………………………...………...…….…passim

Tenn. Code Ann. § 39-14-403……………..…………………..…………………..….4, 6, 18

Tex. Penal Code Ann. § 30.02….…………………………………...………..…………16, 20

Utah Code Ann. § 76-6-201…..……………….………………….…………….………16, 20

Wash. Rev. Code § 9A.52.010(2)……………………………………….………………….15

Rules:

Supreme Court Rule 10(c)…………………………………………..……...………………..9

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

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

Other Sources:

Iowa Jury Instr.–Crim. § 1300.12……………………………….………………….………15

Okla. Uniform Jury Instr.–Crim. § 5-18……………………………..……………….…….15

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

An Analysis of National Data 1998-2007 (2015)…………..….………..……....…...22

Rollin M. Perkins & Ronald N. Boyce, Criminal Law (3d ed. 1982)………….……….14-15

Tenn. Pattern Jury Instr.–Crim., Vol. 7 at §§ 11.01, et sec. (2d ed. 1988)

(pre-1989 burglary statutes)……………………………………………..……….….20

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

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

§ 8.13 (1986)……………………………………………………………………...13, 14

Wayne R. LaFave’s Substantive Criminal Law § 21.1 (2d ed. 2003).....................................16

vii

OPINIONS BELOW

United States v. Brown, 957 F.3d 679 (6th Cir. 2020)……………….…..Appx. 2-11

United States v. Brown, Amended Judgment, 1:06-cr-78, R. 137

(E.D. Tenn Feb. 26, 2018)…………………..…………….......................Appx. 12-18

JURISDICTIONAL STATEMENT

Mr. Brown was sentenced under the Armed Career Criminal Act (the “ACCA”), 18

U.S.C. § 924(e)(2)(B)(i) on November 29, 2010.

He later filed a motion to modify sentence

under 28 U.S.C. § 2255 and Johnson v. United States, 135 S. Ct. 2551 (2015), challenging

the application of the ACCA and its 15-year mandatory minimum sentence.

The District

Court for the Eastern District of Tennessee granted his § 2255 motion, but the government

appealed.

On April 24, 2020, the United States Court of Appeals for the Sixth Circuit

reversed and remanded his case for reinstatement of the ACCA sentence.

He filed a

petition for en banc rehearing, which was denied on July 14, 2020.

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

1254(1).

Pursuant to Rule 13 of the Supreme Court and this Court’s March 19, 2020

COVID-19 Order, the time for filing a petition for certiorari review is 150 days after the

issuance of an order denying a petition for rehearing. 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.

PRAYER FOR RELIEF

Petitioner, Mr. David Earl Brown, respectfully prays that a writ of certiorari issue to

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

Alternatively, he asks that the Court hold this petition pending its review of United

States v. Yerkes, 820 F. App’x 334 (2020), a direct appeal which addresses whether

Georgia’s definition of “entry” in its burglary statute suffers from the same overbreadth as

that raised herein.

In Yerkes, the Sixth Circuit issued a divided opinion, with Judge Moore

explaining in detail how the majority erroneously reached a conclusion in conflict with this

Court’s precedent. Yerkes, 820 F. App’x at 339-46 (Moore, J. dissenting).

She further

explained why “generic burglary” does not encompass an “entry” made by only an

instrument that crosses the threshold of a building in only a failed attempt to gain admittance.

Id.

The petition for certiorari in Mr. Yerkes case was filed November 20, 2020, and is

pending before the Court as case number 20-6450.

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).

Tennessee defines burglary as occurring when an individual “without, the effective

consent of the property owner,”:

(1) Enters a building other than a habitation (or any portion thereof) not open

to the public, with intent to commit a felony or theft;

(2) Remains concealed, with the intent to commit a felony or theft, in a

building;

(3) Enters a building and commits or attempts to commit a felony or theft; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat,

airplane or other motor vehicle with intent to commit a felony, theft or

assault or commits or attempts to commit a felony, theft or assault.

Tenn. Code Ann. § 39–14–402(a) (1995).

“As used in this section, ‘enter’ means: (1)

Intrusion of any part of the body; or (2) Intrusion of any object in physical contact with the

body or any object controlled by remote control, electronic or otherwise.”

Ann. § 39–14–402(b) (1995).

Tenn. Code

And, Tennessee’s aggravated burglary statute incorporates

this definition, as “aggravated burglary” means “burglary of a habitation as defined in §§

39-14-401 and 39-14-402.” Tenn. Code Ann. § 39-14-403.

STATEMENT OF THE CASE AND FACTS

When Mr. Brown was originally convicted of being in possession of a firearm as a

convicted felon, under 18 U.S.C. § 922(g)(1), he received the ACCA’s 15-year mandatory

minimum sentence due solely to his three, non-violent prior Tennessee aggravated burglary

conviction.

His sentence was later reduced to 63 months after he filed a motion under 28

U.S.C. § 2255 and Johnson, 135 S. Ct. 2552 (finding the residual clause of the ACCA void

for vagueness 1).

During the nearly 3 years that he has been released he has lived in the

community, productively, without any violations or modifications of his supervised release.

After serving a substantial 63-months on this instant conviction, he successfully completed

his term of supervised release, and should be a free man.

The government, however, had appealed the district court’s grant of § 2255 relief

pending the outcome of this Court’s decision in United States v. Stitt, 139 S. Ct. 399 (2018).

While the government appeal was pending, this Court determined in Stitt that Tennessee’s

Under the ACCA, a prior offense qualifies as a “violent felony” if it satisfies the following

definition:

(B) The term “violent felony” means any crime punishable by imprisonment for a term

exceeding one year . . . that –

(i) has as an element the use, attempted use, or threatened use of physical

force against the person of another, or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to

another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The final clause of § 924(e)(2)(B)(ii) “otherwise involves conduct that presents a serious potential risk of physical injury to

another” - is the “residual clause,” held void for vagueness by Johnson. 135 S. Ct. at 2563.

aggravated burglary statute was not overbroad on the locational element because the term

“habitation” was limited to buildings or other vehicles and structures that had been adapted

for overnight accommodation.

See id.

While acknowledging that Stitt foreclosed his original argument before the district

court, Mr. Brown argued that Tennessee’s aggravated burglary statute was nonetheless

overbroad, because the “entry” element swept in mere attempted burglaries.

Specifically,

Mr. Brown argued that unlike generic burglary in the ACCA, a person can be convicted of

“burglary” in Tennessee when they have only attempted an entry (by crossing the threshold,

not with one’s body, but with an instrument used only in a failed attempt at access).

Thus,

Mr. Brown argued, Tennessee aggravated burglary encompasses mere attempted burglary,

and does not qualify as a “generic burglary” under the ACCA.

The Sixth Circuit declined to adopt Mr. Brown’s position. The Brown panel held it

was controlled by Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019), which in

turn relied upon United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007), to conclude that

all Tennessee aggravated burglary convictions under Tenn. Code Ann. § 39-14-403 are

generic.

United States v. Brown, 957 F.3d 679, 683 (6th Cir. 2020).

But, neither Nance

nor Brumbach addressed the issue raised here—whether Tennessee’s aggravated burglary

statute is overbroad on the “entry” element.

However, the Brown panel proceeded to

discuss, in dicta, the merits due to the importance of the issue.

Id. at 684.

The Sixth

Circuit would later rely on the reasoning in Brown in its divided Yerkes opinion to concluded

that generic burglary extends to attempted entries. 820 F. App’x at 336-37 (relying on

Brown, 957 F.3d at 683, 685, 687-88).

The Brown panel concluded that at the time the ACCA was passed in 1986, a

majority of states as well as the common law limited the entry element of burglary.

688.

Id. at

To count as an “entry” for burglary either the individual’s body must cross the

threshold or when only an instrument crosses the threshold that instrument must be used or

intended to be used to complete a further crime within (referred to herein as the “instrumentfor-crime” variant).

Id. at 688.

Only a small minority of states defined “entry”

expansively, to include those instances where an instrument crosses the threshold and is used

only in a failed effort to gain admittance to the building (referred to herein as the “instrumentfor-attempted-entry” variant).

See id.

Yet, despite concluding that the narrow instrument-for-crime view was the majority

view, and without citing James v. United States, 550 U.S. 192 (2007) (burglary does not

include attempted burglaries), the Brown panel held that the distinct forms of entry were

merely a modest deviation—only an “‘arcane distinction’ that Taylor would disavow.” Id.

at 685.

It thus opined that the generic definition of burglary under the ACCA, unlike the

majority view amongst the states, is not limited to the instrument-for-crime variant.

Id. at

684-85.

Mr. Brown filed a petition for en banc rehearing.

The Sixth Circuit ordered the

government to respond, but ultimately denied rehearing because less than a majority of

judges voted for rehearing, thus leaving the Brown panel opinion intact.

Mr. Brown

remains out of custody at this time, with a self-report date in February of 2021.

Undersigned is also 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

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.

Mr. Gilliam has a

petition for certiorari pending before the Court as case number 20-6306, and Mr. Morris’s

petition for certiorari is pending as case number 20-6461.

During this same time period the Sixth Circuit also issued its divided opinion in

Yerkes, 820 F. App’x 334, a direct appeal which addressed whether Georgia’s definition of

“entry” and whether “generic burglary” is defined by looking to the view of a majority of

the states in 1986.

at 336-38.

The majority in Yerkes adopted wholesale the reasoning in Brown.

Id.

But, Judge Moore dissented, explaining in detail that the majority’s conclusion

(which rested on Brown) not only ignores this Court’s clear, controlling precedent, but is

also based on three additional errors—an erroneous view of the early common law, 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 of violence.

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

Mr. Yerkes’s petition for certiorari review is pending

before the Court as case number 20-6450, and Mr. Brown asks the Court to hold the instant

petition pending its review of Yerkes.

REASONS FOR GRANTING OF THE WRIT

This Court has not yet defined what constitutes a sufficient “entry” for generic

burglary under the ACCA.

Yet, because application of the ACCA has such drastic

consequences—application of a 15-year mandatory minimum, a potential life sentence, and

a sharp increase in an individual’s sentencing guideline range—its proper interpretation (and

thus scope) is an important question of federal law.

been, but should be, settled by this Court.

And, here it is a question that has not

See Rules of the Supreme Court 10(c).

Moreover, after Brown and Yerkes, the Sixth Circuit has now addressed this question “in a

way that conflicts with relevant decisions of this Court,” namely James, 550 U.S. 192;

Taylor v. United States, 495 U.S. 575 (1990); Stitt, 139 S. Ct. 399; and Quarles v. United

States, 139 S. Ct. 1872 (2019), and the cases they rely upon.

Rules of the Supreme Court

10(c).

The Sixth Circuit was correct that at the time the ACCA was passed in 1986 a

majority of states and the common law defined “entry” in a narrow way—by requiring that

when an instrument (but not the body) crosses the threshold of a building that instrument

must be used in an effort to commit a further crime within.

Brown, 957 F.3d at 684, 688.

A state which allows the element of “entry” to be met when an instrument (but not the body)

crosses the threshold in only an attempt to gain admittance is thus broader than the element

of “entry” utilized by most states.

See id.

It is instead merely an attempted burglary.

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

And, importantly, this Court has

already held that attempted burglary does not qualify as a “generic burglary.” James, 550

U.S. at 197.

The Sixth Circuit below ran afoul of this Court’s precedent.

Despite the fact

that the majority view of “entry” is the narrow view, the Sixth Circuit erroneously concluded

that “generic burglary” in the ACCA is not so limited.

Brown, 957 F.3d at 683-84, 688.

But, this Court has always defined the generic definition of burglary in the ACCA

by looking primarily to the “‘prevailing view in the modern codes’ and what modern statutes

‘generally require’ and ‘typically describe.’” Taylor, 495 U.S. at 598. Indeed, its two

most recent jaunts into this topic both emphasized the majority view in 1986 as establishing

the contours of “generic burglary.” Stitt, 139 S. Ct. at 406; Quarles, 139 S. Ct. at 1878.

Moreover, the Sixth Circuit never cited James, and thus did not explain how its conclusion

comports with this Court’s pronouncement that attempted burglary does not qualify as

“generic burglary.”

The Sixth Circuit has thus interpreted an important question of federal law, currently

unaddressed by this Court, in a way that conflicts with its relevant decisions.

Here, under

Tennessee law the government was only ever required to prove an attempted, but failed,

entry.

The ACCA, and it’s harsh fifteen-year mandatory minimum sentence was wrongly

applied to Mr. Brown.

This Court should grant certiorari review to define the scope of the “entry” element

of generic burglary, and this case presents the Court with an excellent opportunity.

Certiorari review is appropriate.

Or, alternatively, it would also be appropriate to hold this

case pending the Court’s review of the Yerkes petition.

ARGUMENT

Mr. Brown’s convictions for Tennessee aggravated 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, United States v. Prater, 766 F.3d 501, 509 (6th

Cir. 2014), Mr. Brown’s burglary convictions count as ACCA predicates only if Tennessee

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

burglary” as a qualifying offense.

18 U.S.C. § 924(e)(2)(B)(ii).

Thus, to count as an

ACCA predicate, one’s burglary conviction must be for generic “burglary,” not merely

attempted burglary.

To determine whether Mr. Brown’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

Tennessee burglary offenses to the elements of generic burglary.

Id.

If the elements of

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

convictions count as “violent felony” predicates under the ACCA.

do not.

Id.

Otherwise, they

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

the conviction does not count as generic burglary.

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.

at 598.

Stitt addressed just one element of this generic definition: the term “structure,” as

that term meant in the majority of state jurisdictions when Congress enacted the ACCA in

1986.

Stitt, 139 S. Ct. at 405.

Addressing that term, Stitt held that Tennessee’s

“habitation” element in its aggravated burglary statute sweeps no more broadly than the term

“structure.” But Stitt did not settle everything when it comes to Tennessee burglary. 2

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

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, 337 (quoting Brown, 957 F.3d at 684, 688); see also 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.

by instrument.

Jurisdictions differ, however, about what is required for this “entry”

The distinction turns on the defendant’s purpose in using the threshold-

crossing instrument.

The majority view 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 the instrument crosses the threshold and thus a burglary is

committed.

See Brown, 957 F.3d at 688 (acknowledging that the majority of jurisdictions

in 1986 “limited an ‘entry by instrument’ ‘to the situation where the instrument is used to

More recently, the Court addressed yet another aspect of generic burglary, holding that

generic “remaining-in” burglary (a form of generic burglary under Taylor) “occur[s] when

the defendant forms the intent to commit a crime at any time while unlawfully present in a

building or structure.” Quarles, 139 S. Ct. 1872. Quarles also did not address generic

“entry,” so its outcome does not affect Mr. Brown’s arguments here.

remove property from the premises or injure or threaten an occupant’” (collecting cases and

statutes)).

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

variant, as this is only an attempted entry and thus only an 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)).

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

‘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 Rex v.

Hughes, 1 Leach 406, 407 (1785)) (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.