Petition for Writ of Certiorari — Frank Joseph Dodge, Petitioner v. United States

No.

IN THE

Supreme Court of the Anited States

FRANK JOSEPH DODGE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

G. ALAN DUBOIS

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF NORTH CAROLINA

JACLYN L. TARLTON

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel of Record

EASTERN DISTRICT OF NORTH CAROLINA

150 Fayetteville St.

Suite 450

Raleigh, N.C. 27601

(919) 856-4236

jackie_tarlton@fd.org

Counsel for Petitioner

QUESTION PRESENTED

Whether North Carolina breaking or entering is categorically broader

than generic burglary and thus cannot be a violent felony under the

Armed Career Criminal Act when it can be committed by breaking into

vehicles and structures that house only property and no people and

without any entry at all.

li

LIST OF ALL DIRECTLY RELATED PROCEEDINGS

United States Court of Appeals for the Fourth Circuit:

United States v. Dodge, No. 18-4507 (4th Cir. Apr. 7, 2020) (reported at 963

F.3d 379), reh’g denied (Jul. 28, 2020)

United States District Court for the Eastern District of North Carolina:

United States v. Dodge, No. 5:15-CR-293-FL-1 (E.D.N.C. Jul. 9, 2018)

TABLE OF CONTENTS

QUESTION PRESENTED ......ccccscsssesesessseeseeesesesessnsnsecseuesasseceaeeeaeneaceceseearersreneeenetes i

LIST OF ALL DIRECTLY RELATED PROCEEDINGS ..0......eeessecececececeeeseseseseaeneeees ii

TABLE OF AUTHORITIES ..0...cccccssceeeseceseeresersescscsesessssscscsenesenesearaaeacaeesaeacieeseseeers iv

OPINIONS BELOW oo. c.cecccceceeseececececscacsceesesessssscseseseseaeseaeceseseeseseacacaretasacasesseaeeeecaes 1

JURISDICTION... ceccssssccssesssssscssscsenessesssesscseseversseesersesevenecdesessssessseasenseseeesseneesaeeess 1

STATUTORY PROVISIONS INVOLVED we. essccecsssseeeseseecesesecseseeaesenetarseseatseaeens 2

INTRODUCTION .....eecccccsssssssscecsesceseneseessssssesssessnsteecececuseeesceeesscacaeesesaeeseetseseeeneates 3

STATEMENT ......cccscssscssssssscceesscererecarscaracacansvseecscsesesesescasscacacseececersesavaseasseasssesassenenenes 4

REASONS FOR GRANTING THE PETITION... essecesscsessscesceeeeseeeeeeeeaeseasseseseeees 9

I, THE FOURTH CIRCUIT'S DECISION IS WRONG AND CONTRAVENES

THIS COURT'S DECISIONS IN STITT, TAYLOR, AND MATHIS BECAUSE

IT COUNTS AS A VIOLENT FELONY A BREAKING OR ENTERING

STATUTE THAT INCLUDES BREAKING INTO STRUCTURES AND

VEHICLES THAT HOUSE PROPERTY AND NO PEOPLE... .ecccsssseeeees 9

A. The Fourth Circuit ignored the clear command of this Court's

PYLECEMENLS..... cee ceeceeccceeeeeueeeneceeucccsuuceuacceaeceassegscenecsensses 10

B. The Fourth Circuit's decision departs markedly from how other

federal courts of appeals analyze burglary offenses under the

ACCA post- Stitt... cciiecccccsseecsesssccecueseeecensesesnesseseanenseeanensess 15

II. THE FOURTH CIRCUIT'S DECISION CONTRAVENES TAYLOR FOR

ANOTHER REASON, NAMELY THAT IT COUNTS AS A VIOLENT

iii

FELONY A STATUTE THAT DOES NOT REQUIRE ENTRY, AN

ESSENTIAL ELEMENT OF GENERIC BURGLARY..........cccssseeseeseeveetens 19

II. THIS ISSUE IS IMPORTANT AND RECURS FREQUENTLY.........0cccc00 24

IV. THIS IS AN EXCELLENT VEHICLE TO DECIDE THE QUESTION

PRESENTED... ..ccscscccsssscecessncesernaseseeenseeeeesaeeeseseenseseausersaeseesensaeesesee 26

V. EVEN IF THIS COURT BELIEVES PLENARY REVIEW IS

UNWARRANTED, IT SHOULD SUMMARILY REVERSE.,...........ceecceeeeeee 27

CONCLUSION... cs esecssseeecessssnacecensecesenaseessesneseesesseseesessessesanseceesaessesssseaseaeeesaeesenes 28

APPENDIX A: Opinion of the U.S. Court of Appeals for the Fourth Circuit (Jun. 30,

QOD)... eseecesececesesesssssseseacsescecevescseseeccsssssusueseseesesessescevssssssssvecsssesscesausesssseasacsuseareessses la

APPENDIX B: Judgment of the U.S. District Court for the Eastern District of North

Carolina (Jul. 9, 2018) .......cecsesssesseccecseecsessescecessssnssetsseessesaessessaesacsussseseusaseeseensess lla

APPENDIX C: Order of the U.S. Court of Appeals for the Fourth Circuit Denying

Petition for Rehearing En Banc (Jul. 28, 2020) ..ccccccccsscsssssssscscscscesseevsescseeceees 19a

APPENDIX D: Sentencing Transcript (Jul. 9, 2018) .....cccccsscseccseseecesecesssssssseessess 20a

APPENDIX E: Sentencing Transcript (Sept. 18, 2017) ..ccecccccssssscccsscecceceseerensees 4da

APPENDIX F: Arraignment Transcript (Jun. 16, 2016)......ccccccscccsecssesesssesseseeeeens 65a

APPENDIX G: Arraignment Transcript (Apr. 14, 2016) ..cccccccccscescccesscecsseeceveees 86a

APPENDIX H: Indictment (Oct. 15, 2015) .occccccsccccsssssecsssscecescccscsevsesveceeasseeaves 103a

iv

TABLE OF AUTHORITIES

CASES

Begayv. United States,

BBB U.S. 137 (2008) on escessesssssesesesseesessessesssssesssssssussssassassaneseesecscaveseesesseeseeseeneesessceess 19

Commonwealth v. Cotto,

752 N.E.2d 768 (Mass. App. Ct. 2001) w.ccccccsccesssssssesessscececececsescsssssecesesevevsreeeeseeees 22

Descampsv. United States,

570 U.S. 254 (2018) wvecccccccsscscssscscccessscecscsssevscsssscseacsecstasseestascesveceavaceesevaceesesees 5, 19

Grady v. North Carolina,

575 U.S. 806 (2OLB) o.eeecccssessssessssesessesessesessesessenessessearssssesseecssssesessesesseacsseacsnsscsneascess 28

Greer v. United States,

938 F.3d 766 (6th Cir. 2019) cccccsccscssscssssscsssvssscscscscevesecacevavscessssevevevevacavavsvaens 16, 17

James v. United States,

BBO U.S. 192 (2007) ...ccecececesscssssssssssssssssssesscesevevevessesesesesesssssmssecessceseessess 11, 19, 22, 23

Johnson v. United States,

BBO U.S. 183 (2010) occ cecccecseseesssssssessessssccnesecucsecsesusseassaececseessvesseneseessseneseesssessseess 4

Johnson v. United States,

576 U.S. 591 (2015) ooccccccccccssssscscscscscssssssscscscsvevevsrsesesecesuscseseeuessenssenseeens 4, 11, 23, 24

Martinez v. Illinois,

B72 U.S. 883 (OTA) vceccccccccsssesescscssssssssssssscsssvsvsvsescscscscseevevecsessverseececececacacaeavavaeae 28

Maryland vy. Kulbicki,

136 S. Ct. 2 (2015) oeceecesccssscsesssssesssescesesssesessesesessessaescseesencacsescseessscsesescavsesecscesavenees 28

Mathis v. United States,

186 S. Ct. 2243 (2016) voccccccccsscsescccsscsccesssscscsssesssssssssssssssrsersrerecavacaeacseneaceees passim

Molina-Martinezv. United States,

136 S. Ct. 1838 (2016) oo sessscesssescesessecssessssessesssssssssssesucsnesuesessesassesesesceseeserseceesacess 27

People v. Austin,

799 P.2d 408 (Colo. App. 1990) ...ccecccccscsssssessseseesescscscssececsessessesssssesecssececscseecansnsnsass 22

Quarles v. United States,

189 S, Ct. 1872 (2019) ooeeecccsecsssssssssessssssssssesevsssesesesesssuusscsevssscecesscsesssstavevseees 11, 19

Shepardv. United States,

B44 U.S. 1B (2005) oo eeeeecccssescseecseesessescevcenesecsesecesseeesesnessenessaesaseesseeessseessseeaseaneseess 19

State v. Batts,

617 S.E.2d 724 (N.C. Ct. App. 2005) occ ccccecscsssecsssseecescssscsscsssstecseserevseeseseseraee 13

State v. Bost,

286 S.E.2d 632 (N.C. Ct. App. 1982) . ciccccsccsccssssescssssrssccsesssssesescceecesecaceeesavacaeavsens 13

State v. Ison,

744 P.2d 416 (Alaska Ct. App. 1987) o...cccccccccssssssscsssssscsssesesesessescevensessescavsvsssacsneseans 22,

State v. Jones,

157 S.B.2d 610 (N.C. 1967) coecceccscccsscscsesscsssscscscsssserescsssessescasacsvsvsucacessvsvsescsescsusseaves 20

State v. Lucas,

758 S.B.2d 672 (N.C. Ct. App. 2014) vocccccccscsssssssessssscssccssrserssssssssrssssecesessceeasesees 20

State v. McCurdy,

487 P.2d 764 (Ariz. App. Ct. 1971) o..ccccceccescssssssessseseseseseeseesscsesesesestsrescsseesaneesacses 22

State v. Myrick,

291 S.B.2d. 577 (N.C. 1982) ...ceseescscscssessssecrsssssesessscssssscesesscessseusersessanavsvevenecevseseaves 20

State v. Nichols,

150 S.B.2d 21 (N.C. 1996) c.cccccccccscsssssssssssssscsesesecessssscessscscevsvscavsersececsessversversaceanens 22

State v. Taylor,

428 S.H.2d 273 (N.C. Ct. App. 1998) ciccccccscccscescesessessrssssssssssesssssesesececersverseseenas 13

State v. Watkins,

720 S.H.2d 844 (N.C. Ct. App. 2012) cccccccccccsccsssseesssrsssesesescsessscesececcessnansesesuse 20

Taylor v. United States,

45 U.S. 575 (1990) oo cecescecessesseeeessessecansetseccncescessesssesueeseaseaneseeseesesseencaneseeseesee passim

United States v. Evans,

924 F.8d 21 (2d Cir, 2019) coccccccccecescsescscsscsscscrescssscsssessssrsnseseessessscscesesecececacarsrenes 23

United States v. Jones,

951 F.8d 1138 (th Cir. 2019) vocccccccccsesscscssscscecsssscecssecssesscscsstscsenseecssacareess 15, 16

vi

United States v. Livingston,

442 F.3d 1082 (8th Cir. 2006) ...cccscscscscscecsceceressssesescssesecssesesscececeesesssstesstsneceseesesses 21

United States v. Martinez,

954 F.2d 1050 (Sth Cir. 1992) ooccccccccscsssssessescsssseccsssssscscevsvsecsescecsesvscsessssvessscasenses 23

United States v. Montgomery,

974 F.3d 587 (Sth Cir. 2020) .cecccececsssssesssssvsssccsessesssstssssscsssusascesscnsarsecarsecarseceveess 18

United States v. Mungro,

754 F.8d 267 (4th Cir, 2014) cccccsccccssscssssssssecscscsescscssssssssscevscevessessserevevenevever passim

United States v. Sims,

933 F.3d 1009 (8th Cir. 2019) w..ccsccceccsssscssssssesessssssesssssssssssstsssescsoscatarseseesesees 17, 18

United States v. Smith,

645 F.3d 998 (8th Cir. 2011) ooccecccccccssssscsessssssessessecscsssssssstscsssscscsssesssnsesnesearavsesseees 24

United States v. Stitt,

189 S. Ct, 899 (2018) oo eecececccccsscsssssessesescscssssesesesvsesscssecsescevesssseavecsveveususeeseases passim

United States v. Strahl

958 F.2d 980 (LOth Cir. 1992) .....ccceccccccscscscccesssscesesssssecececesevecscsesssesussnessvsnevavevsesuns 24

United States v. Thomas,

2 F.3d 79 (4th Cir. 1993) ..ceccccccscccsccscsscssssccsessesssvessecscsessesssssesssssacacssavavsesesucavansesenses 23

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) ooeccccccscsssssscscssescssssssssesessssssvsesearsesecscavenseereucarensecseeee 23

STATUTES

18 U.S.C. § G22(g) vo ccccccccccssessssssssscnsssesesessssssecscsvsvevsvevscsesssessscsosssssssssssssscssscecsssenvavaeeees 4

18 U.S.C. § 924 (6)... eececcscscscsssssesssrescsescsnssesssscssavssesscscevsveseavevssesessnsasacsesesssssussessesneassvons 6

18 U.S.C. § 924 ])CD) ov cececccccccccsssssscssesssssssescsssscscsussssesssvesssssvssevessessensevsececsensesseeecees 4, 25

18 U.S.C. § 924 (e)(2)(B) ve seeccccsccscssessssessssesscsesssscssssesseassucsusacerssesssevensusensecevsvsevsveaeaveens 2,4

18 U.S.C. § 924(e)(2)(B) Gi)... cececccecceseeseeeseesessesscetsscstsssssstsssetsvsassusneacarcavevsecereesse 14, 24

18 U.S.C. § 8583 ...c.cccccccscessesescsssssssssssscsecsvsvevssssssussscacausvsusseasavsusesscscacseavarsecneneavevsecanees 25

18 U.S.C. § 3583 (DCL) .eeeeecccccscscesescececsscscsesssesscsusesscarsususssssscssssssavessacevavavsesecavavensesseess 27

vii

18 U.S.C. § 8583 (b)(Q) oo eseeceecseeceesseesneessesssesesssscsecssccsscssearecsecsessseesecsessssaseesueeseeseeaseeese 27

28 U.S.C. § L2BACD) oe eeessccessesessesessesessesesssssesnssecucsscuesscuesscsesesnesseneasencacereasenesseassessesseess 2

2B ULS.C. § L291 eceececcecsessesseseesecsessesnecsecsscsssessecsssnesucsecsesssssesseansaussveavssesseeseescancaneeneeses 1

Ark, Stat. Ann. § 5-39-202(a) ...cccsescssssssessessessesecscsessscsssesseensansssseseessssseseaneenesnesseess 21

Calif. Pen. Code Ann. § 459... .cccccessssscssesssessesseesesscssesssscessasessessesesesseseeseesseenesnsssses 19

Bla. Stat. § 777.041). ccecccsssssessscssssesesesscseseenssesesceeencssseseeceseneseseeeenssesesesesnensseseseeseasseees 23

Fla. Stat. § 810.02(D)...cceccssescssssesssssesscssseesesnesesnssesnssscussecseseasesesesseaeeseeesseesseenesseneseess 23

Towa Code Ann, § 718.1 oo... cccccesscssssessssseessscssecssceeseccsscessecseecsuscssecucesccsscasesseseensesseans 21

N.C, Gen. Stat. § 14-54... ecccccccscecssessscsseeseescsseeseesesssessessessssssssssssscuseasssisssesassaseass 2, 26

N.C. Gen. Stat. § 14-54 (a) ee ccesssssesseerecsessesssssesncsncsecsesssesessesscsssssaseaseaseasesneaueseseess 7,14

N.C. Gen. Stat. § 14-5400) eee eececcssssssesseeseeseesessessssnssucsecsvesessesssaussusseseaseaseasecueescensenses 13

SENTENCING GUIDELINES

U.S.S.G § ABL.A(D) oc cecececessesesesessssesteueacsesnsseseseaeerssesesceseseseseacecanesessassesestessassneaeseees 4, 25

ULS.S.G § ABLA(C)..ceescccesescessstessssssessesscssssessstsessesessesecussesucassesessesesscseseessseeseesenetess 4, 25

OTHER SOURCES

N.C. Judicial Branch, Felony Case Activity Report FY 2018-2019 (2019)... 25

N.C. Judicial Branch, Felony Case Activity Report FY 2019-2020 (2020)... 25

IN THE

Supreme Court of the United States

FRANK JOSEPH DODGE,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Frank Dodge respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit's opinion, Pet. App. 1a-10a, is reported at 963 F.8d 379. That

court’s order denying rehearing en banc is not reported. Pet. App. 19a. The District

Court’s judgment is available at Pet. App. 1la-18a.

JURISDICTION

The District Court entered final judgment on July 9, 2018. Pet. App. 11a-18a.

The Fourth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291 and entered

judgment on June 30, 2020. Pet. App. 1a-10a. A timely petition for rehearing en

banc was denied on July 28, 2020. Pet. App. 19a. This Court entered an order on

March 19, 2020, extending the deadline to file any petition for a writ of certiorari

due on or after that date to 150 days from the date of the lower court judgment.

Because that date fell on Christmas day, a federal holiday listed in 5 U.S.C. § 6108,

this petition is being timely filed on December 28, 2020. This Court’s jurisdiction

rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 924(e)(2)(B) (2006) provides, in pertinent part, that a “violent felony”

under the Armed Career Criminal Act is:

Any crime punishable by imprisonment for a term exceeding one year

** * that—

G) has as an element the use, attempted use, or threatened use of

physical force against the person of another;

or

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

otherwise involves conduct that presents a serious potential risk of

physical injury to another

N.C. Gen. Stat. § 14-54 (2018) defines breaking or entering as follows:

(a) Any person who breaks or enters any building with intent to

commit any felony or larceny therein shall be punished as a Class H

felon.

(al) Any person who breaks or enters any building with intent to

terrorize or injure an occupant of the building is guilty of a Class H

felony.

(b) any person who wrongfully breaks or enters any building is guilty

of a Class 1 misdemeanor.

(c) As used in this section, “building” shall be construed to include any

dweiling, 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.

INTRODUCTION

North Carolina’s breaking or entering statute is categorically broader than

generic burglary in the Armed Career Criminal Act. For starters, it allows

conviction for those who break into buildings and vehicles designed to store

property and no people. Under this Court’s decisions in United States v. Stitt, 139

S. Ct. 399 (2018), Mathis v. United States, 136 8. Ct. 2243 (2016), and Taylorv.

United States, 495 U.S. 575 (1990), such a statute does not present the requisite

risk of violent confrontation and thus is categorically overbroad. And the North

Carolina statute is categorically overbroad for another reason: It does not even

require entry, a key element of generic burglary as defined in Taylor. This Court

and six courts of appeals that have considered analogous attempted burglary

statutes have held they are categorically broader than generic burglary.

In the face of this precedent, the Fourth Circuit nonetheless upheld its prior

holding that North Carolina breaking or entering is a violent felony under the

ACCA, recognizing “tension” with this Court’s precedents but refusing to resolve it.

This Court’s guidance is sorely needed to clarify that state breaking or entering

crimes that do not categorically present a risk of violent confrontation and do not

even require entry cannot be used to dramatically increase a defendant’s mandatory

minimum sentence under the Armed Career Criminal Act.

This Court should grant certiorari and reverse. But even if this Court believes

plenary review is unwarranted, it should summarily reverse in light of Stztt,

Mathis, and Taylor.

STATEMENT

A. Statutory Background

The Armed Career Criminal Act has drastic consequences for criminal

defendants. Although violations of the federal felon-in-possession statute, 18 U.S.C.

§ 922(g), are normally subject to a maximum penalty of ten years of imprisonment

and no mandatory minimum, the Act provides that district courts must sentence

defendants with three prior convictions for “violent felonies” to a term of at least

fifteen years. 18 U.S.C. § 924(e)(1). Such persons are also subject to an increased

offense level and criminal history category under the Guidelines. U.S.S.G.

§ 4B1.4(b),@).

A violent felony under the ACCA includes any crime punishable by more than

one year that “has as an element the use, attempted use, or threatened use of

physical force against the person of another” or is “burglary, arson, or extortion, [or]

involves the use of explosives.” Jd. § 924(e)(2)(B). These provisions are known as

the “force clause” and the “enumerated-offense clause.” A third clause, the residual

clause, has been struck down as unconstitutionally vague. Johnsonv. United

States, 576 U.S. 591, 606 (2015). Because North Carolina’s breaking or entering

statute does not categorically require the “use, attempted use, or threatened use of

physical force against the person of another,” see Johnson v. United States, 559 U.S.

133, 140 (2010), it is only a violent felony if it qualifies under the enumerated-

offense clause as generic “burglary.”

To determine whether a crime qualifies as a predicate felony under the ACCA,

courts apply the “categorical approach,” which focuses on “the fact of conviction and

the statutory definition of the prior offense.” Taylor, 495 U.S. at 602. Under that

approach, the court “focusles! 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, 136 S. Ct. at 2248. The prior state conviction

is a proper ACCA predicate only if it is defined more narrowly than, or has the same

elements as, the generic federal crime. Descampsv. United States, 570 U.S. 254,

261 (2018). If, however, the prior offense sweeps more broadly than the generic

crime, it cannot serve as a predicate regardless whether the defendant actually

committed the offense in its generic form. Jd.

At issue in this case is whether North Carolina breaking or entering is a

categorical match for generic burglary. Because the ACCA does not define

“burglary,” this Court in Taylor determined that generic burglary has “the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. In United States

v. Stitt, this Court explained that generic burglary encompasses only statutes that

criminalize “burglary of a structure or vehicle that has been adapted or is

customarily used for overnight accommodation” because such statutes “more clearly

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

violence.” 189 S. Ct. 399, 407 (2018).

North Carolina breaking or entering encompasses “breakling] or enterling] any

building with the intent to commit any felony or larceny.” N.C. Gen. Stat. § 14-

54(a). The statute defines “building” as “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.” Id. § 14-54(c).

B. Facts and Procedural History

In October 2015, Frank Dodge was indicted for possessing a firearm after having

been convicted of a crime punishable by imprisonment for a term exceeding one

year. Pet. App. 103a-105a. He pleaded guilty and the District Court calculated his

advisory guideline range to be fifteen years because it concluded that Mr. Dodge

was an armed career criminal under 18 U.S.C. § 924(e). It reached that conclusion

based solely on prior convictions for breaking or entering under North Carolina law

that took place within a five-year period, when Mr. Dodge was eighteen to twentyfour years old. Pet. App. 29a; 46a-47a. At the time of sentencing, he was fortyeight.

Mr. Dodge objected at length to his designation as an armed career criminal,

arguing that North Carolina breaking or entering is categorically broader than

generic burglary and thus is not a violent felony. Pet. App. 46a-50a. At sentencing,

the Government moved for a downward departure below the mandatory minimum

sentence because of Mr. Dodge’s substantial cooperation. Pet. App. 21a-22a.

Counsel for Mr. Dodge argued for an even lower sentence, explaining that if Mr.

Dodge were not an armed career criminal, his advisory guideline range would be

only twenty-one to twenty-seven months. Pet. App. 29a. Counsel detailed Mr.

Dodge’s substantial assistance and rehabilitation and explained that he merely

assisted in the sale of a firearm he never touched or kept in his physical possession.

Pet. App. 22a-34a.

The District Court sentenced Mr. Dodge as an armed career criminal because it

felt constrained by the Forth Circuit’s prior decision in United States v. Mungro,

754 F.3d 267, 272 (4th Cir. 2014). Pet. App. 3a-4a, 47a-50a. In Mungro, decided

before this Court’s decisions in Mathis and Stitt, the Fourth Circuit purported to

hold that North Carolina breaking or entering, N.C. Gen. Stat. § 14-54(a), was not

broader than generic burglary and therefore qualified as an ACCA predicate.

Mungro, 754 F.3d at 272. The Mungro court focused only on whether North

Carolina breaking or entering was broader than generic burglary because it does

not require entry. Jd. at 270. The continuing validity of Mungro was debated by

the parties prior to sentencing, Pet. App. 47a-50a, because Mungro did not examine

other ways that § 14-54(a) is broader than generic burglary. Pet. App. 3a-4a. But

the District Court folowed Mungro anyway. Pet. App. 4a; 50a.

The court credited Mr. Dodge’s cooperation and rehabilitation and imposed a

sentence of eighty-eight months imprisonment, followed by five years of supervised

release. Pet. App. 39a-40a.

Mr. Dodge appealed, renewing his challenge to his armed career criminal

designation. The Fourth Circuit panel acknowledged that “Mungro did not

explicitly consider § 14-54(a)’s ‘building’ element,” the basis of Mr. Dodge’s

argument on appeal. Pet. App. 7a. The panel further acknowledged that after

Mungro was decided, this Court’s decisions in Mathis, 136 S. Ct. 2248, and United

States v. Stitt, 189 S. Ct. 399, cast doubt on the continued validity of Mungro’s

holding. Pet. App. 8a-10a. The panel recognized that Mungro “could be read as

being in tension with intervening Supreme Court reasoning.” Pet. App. 10a. But it

explained that “as a three-judge panel, we are precluded from overruling Mungro,”

and because Mungro stated broadly that North Carolina breaking or entering

qualified as an ACCA predicate, the panel viewed itself as “bound to follow” that

decision. Pet. App. 2a-3a, 7a. The panel affirmed Mr. Dodge’s designation as an

armed career criminal. Pet. App. 9a-10a.

Mr. Dodge petitioned for rehearing en banc, renewing yet again his challenge to

his armed career criminal designation. He argued that Mungro conflicts with this

Court’s intervening precedents because North Carolina breaking or entering covers

breaking into structures that house only property and no people, making it

categorically overbroad. Rehearing Pet. 9-12. And he argued that North Carolina

breaking or entering is also overbroad because, unlike generic burglary, it does not

require an unprivileged entry; breaking alone is sufficient for conviction. Rehearing

Pet. 12-14.

The petition for rehearing en banc was denied, Pet. App. 19a, and this

petition followed.

REASONS FOR GRANTING THE PETITION

I. THE FOURTH CIRCUIT'S DECISION IS WRONG AND

CONTRAVENES THIS COURT'S DECISIONS IN STITT, TAYLOR, AND

MATHIS BECAUSE IT COUNTS AS A VIOLENT FELONY A

BREAKING OR ENTERING STATUTE THAT INCLUDES BREAKING

INTO STRUCTURES AND VEHICLES THAT HOUSE PROPERTY AND

NO PEOPLE

This Court has made clear that, when determining whether an offense qualifies

as a burglary under the ACCA, where that offense can take place matters. In Stit¢,

the Court reiterated that Congress saw burglary as an “inherently dangerous crime”

because it “creates the possibility of a violent confrontation between the offender

and an occupant, caretaker, or some other person who comes to investigate.” Stztt,

139 S. Ct. at 406 (quoting Taylor, 495 U.S. at 588). The Court held that generic

burglary “includes burglary of a structure or vehicle that has been adapted or is

customarily used for overnight accommodation” precisely because breaking into

such structures “runs a similar or greater risk of violent confrontation.” Jd. at 403-

404, 406. By contrast, the statutes analyzed in Mathis and Taylor were

categorically overbroad because they included burglary of structures and vehicles

that are “ordinary boats and vessels * * * (and railroad cars often filled with cargo,

not people)” (Taylor) and vehicles that are “used for storage or safekeeping”

(Mathis), which did not present the same risk of violent confrontation. Stitt, 139 S.

Ct. at 407.

By entrenching its pre- Stitt and Mathisprecedent, the Fourth Circuit ignored

the clear command of those cases and failed to wrestle with the fact that North

Carolina breaking or entering—like the statutes at issue in Taylor and Mathis—

10

includes breaking into structures and vehicles that house property and no people.

Its conclusion that Mathis and Stit¢ do not represent “superseding contrary

decisions” of this Court that require reconsideration of prior precedent contravenes

those decisions and diverges from the holdings of its sister circuits, who have

faithfully applied Stitt, Mathis, and Taylorto arrive at the conclusion that statutes

that allow for conviction based on burglary of structures and vehicles that house

only property and no people are categorically broader than generic burglary and are

not violent felonies.

A. The Fourth Circuit ignored the clear command of this Court’s precedents.

Time and again, this Court has explained that burglary, for purposes of the

ACCA, cannot be committed just anywhere. In Taylor, the Court defined burglary

as “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 597 (emphasis

added). And it went on to note that state burglary statutes were broader than this

generic definition if they included “places, such as automobiles and vending

machines, other than buildings.” Jd. at 599. Indeed, in Mathis, the Court noted

that the Iowa burglary statute at issue “coverled] more conduct than generic

burglary does” because it “reacheld] a broader range of places’—namely, “any

building, structure, /or/ land, water, or air vehicle’—than what Taylor's definition

would allow. Mathis, 136 S. Ct. at 2250.

In Stité, this Court clarified that generic burglary’s locational element is not

limited to “building[s]” in the ordinary sense. Instead, the Court held that generic

11

burglary also includes “burglary of a structure or vehicle that has been adapted or is

customarily used for overnight accommodation.” Strtt, 189 S. Ct. at 403-404.

Generic burglary encompasses certain vehicles, the Court reasoned, because

“breakling] into a mobile home, an RV, a camping tent, a vehicle, or another

structure that is adapted for or customarily used for lodging” runs the same risk of

“violent confrontation” between the intruder and potential occupants that prompted

Congress to include burglary among the ACCA’s enumerated offenses in the first

place. Jd. at 406. In reaching its conclusion, the Court underscored that the

touchstone of generic burglary’s locational element is whether committing the

offense in a particular structure “present{s] a serious risk of violence” to another

person, id. at 407, a principle echoed in cases before and since Stitt. See Quarles v.

United States, 139 S. Ct. 1872, 1879 (2019) “Congress ‘singled out burglary’

because of its ‘inherent potential for harm to persons.”) (quoting Taylor, 495 U.S. at

588); James v. United States, 550 U.S. 192, 203 (2007), overruled by Johnson v.

United States, 576 U.S. 591 (2015) (“The main risk of burglary arises not from the

simple physical act of wrongfully entering onto another's property, but rather from

the possibility of a face-to-face confrontation between the burglar and a third

party—whether an occupant, a police officer, or a bystander—who comes to

investigate.”); Taylor, 495 U.S. at 588 (“The fact that an offender enters a building

to commit a crime often creates the possibility of a violent confrontation between

the offender and an occupant, caretaker, or some other person who comes to

investigate.”).

12

Illustrating this focus on the risk of “violent confrontation,” the Court reaffirmed

that the Missouri statute at issue in Taylor was “beyond the scope” of the ACCA

because the law “criminalized breaking and entering ‘any boat or vessel, or railroad

car” and thus included “ordinary boats and vessels, often at sea (and railroad cars

often filled with cargo, not people).” Stitt, 189 S. Ct. at 407. The Court also

reasserted that the lowa burglary statute in Mathis was similarly overbroad

because it covered “ordinary vehicles” and other structures that were used “for the

storage or safekeeping of anything of value.” Jd. Yet unlike these two statutes, the

one at issue in Stitt was no broader than generic burglary, the Court noted, because

it was limited to burglaries of vehicles or other structures “customarily used or

adapted for overnight accommodation” and was therefore “more clearly focusled]

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

Id.

Thus, in confirming that the scope of generic burglary’s “building or other

structure” element hinges on the risk of violent confrontation with another person,

Stitt also clarified that this same element does not necessarily include burglaries

committed in any building or vehicle—especially those where the likelihood of

violent confrontation is virtually nonexistent. See id. (explaining that the burglary

statute at issue in Taylor was broader than generic burglary because its scope was

not limited to “circumstances where burglary is likely to present a serious risk of

violence”).

13

Given this clear rule, the Fourth Circuit should have recognized that Stitt and

Mathis superseded its decision in Mungro. See Mungro, 754 F.3d at 272 (holding

that North Carolina breaking or entering “sweeps no more broadly than generic

burglary” without addressing the scope of the statute’s building element). Indeed,

North Carolina’s breaking or entering statute suffers from the very same flaws that

rendered those in Taylor and Mathis fatally overbroad. Like the Missouri breaking

and entering statute in Taylor, North Carolina’s covers “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) (emphasis added), and

“nowhere restrict[s] its coverage * * * [only] to vehicles or structures customarily

used or adapted for overnight accommodations.” See Stitt, 189 S. Ct. at 407 (noting

that the Missouri statute’s “usel] [of] the word ‘any’ ” rendered it broader than

generic burglary). And just like the lowa statute in Mathis, which was overbroad

for encompassing structures and vehicles used “for the storage or safekeeping of

anything of value,” id., North Carolina’s breaking or entering statute expressly

covers structures that are “designed to house or secure within it any activity or

property,” N.C, Gen. Stat. § 14-54(c) (emphasis added); see State v. Bost, 286 S.E.2d

632, 634 (N.C. Ct. App. 1982) (breaking into a storage trailer for tools and

equipment on a construction site); State v. Batts, 617 S.E.2d 724, at *2-*3 (N.C. Ct.

App. 2005) (breaking into a permanent, locked storage facility used to transport

14

musical equipment); State v. Taylor, 428 S.E.2d 273, 274 (N.C. Ct. App. 1993)

(breaking into a travel trailer temporarily made “an area of repose”).

None of this moved the Fourth Circuit in its decision below. It reaffirmed its

prior holding in Mungro without addressing North Carolina breaking or entering’s

capacious locational element and without assessing whether that element “clearly

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

violence,” Stitt, 189 S. Ct. at 407, flouting Stit?s clear command in the process. The

panel acknowledged that Mungro “did not specifically consider the relative scopes of

the ‘building’ elements” of North Carolina’s breaking or entering statute.” Pet. App.

7a. It acknowledged the evident tension between Mungro and this Court’s decisions

in Mathis and Stitt. Pet. App. 10a (noting that “[t]here is * * * explanatory

language in Stitt suggesting, but not holding, that the locational element of generic

burglary might not encompass structures intended for the storage of property

rather than for occupancy”). And it acknowledged Strt¢s rule that “generic federal

burglary is concerned with violent confrontations that might arise when people are

present, whether in buildings, structures, or vehicles.” Jd. But it then

mischaracterized Stitt?'s holding as “limited to the vehicle context” alone and

therefore not “directly applicable” to Mungro, entrenching its prior precedent. Jd.

(“At bottom, we conclude that Mathis and Stzét do not overrule our prior holding in

Mungro that a conviction under N.C. Gen. Stat. § 14-54(a) qualifies as an ACCA

predicate conviction under 18 U.S.C. § 924(e)(2)(B)Gi).”).

15

In sum, the Fourth Circuit below reaffirmed its outdated and under-reasoned

decision in Mungro not because that case remains good law—post-Stit#, it decidedly

does not—but instead because it felt obligated to do so given the Fourth Circuit’s

rules regarding prior precedent. See Pet. App. 7a. (observing that accepting

Petitioner’s argument would demand that the Fourth Circuit “no longer follow

[Mungro's] holding” but noting that a three-judge panel is “precluded from

overruling” a prior decision). But that sense of obligation has now led to the

entrenchment of a lower court decision that contravenes this Court’s decision in

Stitt. Accordingly, this Court should intervene so that the Fourth Circuit, freed

from its reliance on erroneous prior precedent, can properly apply Stitt, Mathis, and

Taylor moving forward.

B. The Fourth Circuit’s decision departs markedly from how other federal courts

of appeals analyze burglary offenses under the ACCA post- Stitt.

The Fourth Circuit’s failure to analyze whether North Carolina breaking or

entering’s locational element encompasses only those structures in which burglary

presents a “risk of violent confrontation,” see Stitt, 189 S. Ct. at 406, also represents

a marked departure from how other courts of appeals compare state offenses to

generic burglary under the ACCA post- Stitt.

Start with United States v. Jones, 951 F.3d 1138 (9th Cir. 2019). There, the

Ninth Circuit held that a defendant’s prior Colorado conviction for second degree

burglary of a dwelling was a predicate offense under the ACCA because it “coverled]

only conduct within the generic offense of burglary as defined by the Supreme Court

in Stitt.” Id. at 1141. The court made clear that the burglary conviction at issue

16

was no broader than generic burglary only because the defendant had been

specifically convicted of the standalone offense of burglarizing a dwelling, and a

“dwelling” was limited by state law to include only “buildingls] which [are! used,

intended to be used, or usually used by a person for habitation.” Jd, Because

second degree burglary of a dwelling was so limited, it could not cover a structure

used only “for the storage or safekeeping’ of property,” and therefore was not

overbroad. Jones, 951 F.3d at 1141 (quoting Stité, 139 S. Ct. at 407). The

habitation requirement ensured that the statute solely encompassed structures in

which the likely presence of an occupant enhanced the “risk of violent

confrontation.” Stitt, 139 S. Ct. at 406.

The court made plain it would have reached the opposite conclusion had the

defendant instead been convicted of general second degree burglary, which state

law defined in relevant part as “breakling] an entrance into, or enterling], or

remainling] unlawfully in a building or occupied structure.” Jones, 951 F.3d at

1140 (emphasis added). Because the statutory definition of “building,” includes

“structures that are designed to shelter only property,” it covered “significantly

more than the generic [burglary] element of ‘building or other structure.’” Jd. at

1141.

Consider next Greer v. United States, 938 F.3d 766 (6th Cir. 2019). In that case,

the Sixth Circuit held that an Ohio aggravated burglary statute that “coverled] an

expansive array of structures” nonetheless aligned with the generic definition of

burglary because the additional statutory requirement that a person either be

17

“present” or “likely to be present” in the burglarized structure “restrictled] the

statute's scope to only those structures that carry an increased risk of a violent

encounter between perpetrator and occupant.” Jd. at 775, 779. The Sixth Circuit

cited this Court’s decisions in Stitt, Mathis, and Taylor for the proposition that a

“burglary statute is broader than generic burglary if it (1) covers a multitude of

location types, including vehicles, and (2) does not limit its coverage to even

remotely residential uses.” Jd. at 776. It then noted that this proposition could be

explained in large part by Stit¢s focus on “circumstances where burglary is likely to

present a serious risk of violence.” Jd. at 777 (quoting Stztt, 139 S. Ct. at 407). And

because it extended “only to habitations ‘in which at the time lof the burglary] any

person is present or likely to be present,’” the Ohio statute at issue targeted the

“core of the generic offense of burglary” and those instances, as emphasized in Stitt,

“where the risk of violence is the greatest.” Jd.

The Eighth Circuit reached a similar conclusion in United States v. Sims, 933

F.8d 1009 (8th Cir. 2019), one of the two cases this Court addressed in Stitt, On

remand, the Eighth Circuit considered whether the fact that an Arkansas burglary

statute “might cover a car in which a homeless person occasionally sleeps” meant

that it swept more broadly than generic burglary. Jd. at 1013 (quoting Stitt, 139 S.

Ct. at 407-08). Relying on “Stitfs straightforward focus on the potential for violent

confrontation,” the court decided that the Arkansas statute did not. See id, at 1013,

1015 (holding that the statute matched generic burglary and therefore qualified as

a violent felony under the ACCA). The Eighth Circuit emphasized that, “as Stitt

18

recognizes, a statute that prohibits breaking and entering into any vehicle does not

qualify as generic burglary.” Jd, at 1014 (emphasis in original). Such a statute, the

court noted, would encompass vehicles and other structures that merely stored

property, thus moving beyond generic burglary’s ambit. See id. (highlighting the

distinction between Arkansas’s residential burglary statute, which matched generic

burglary, and its more expansive breaking and entering statute that encompassed

structures “not used for residential purposes”). But the Arkansas burglary statute

at issue was more limited: It “applield] only to vehicles in which someone lives or

that are customarily used for overnight accommodation,” and therefore, in

accordance with Stitt, “addresse[d] the risk of violence that concerned Congress

when it passed the ACCA.” Jd. at 1015.

And then there is United States v. Montgomery, 974 F.3d 587 (5th Cir. 2020). In

that case, the Fifth Circuit rejected the contention that Louisiana simple burglary

of an inhabited dwelling “coverled] more places than does the ‘building or structure’

definition of generic burglary.” Jd. at 592-593. To the contrary, the court suggested,

the Louisiana statute at issue was “arguably narrower than generic burglary”

because it required that the building or structure where the offense occurred be

“used in whole or in part as a home or place of abode.” Jd. at 593. Put another way,

“because the place burglarized must be one where a person lives,” the statute

targeted offenses where there was a “greater ‘possibility of a violent confrontation

between the offender and an occupant’ than in a generic burglary.” Jd. (quoting

Taylor, 495 U.S. at 588). And given this focus on the risk of violence, the parallels

19

to Stitt could not be clearer. See Stitt, 189 S. Ct. at 406-407 (recognizing that

burglary is an “inherently dangerous crime” because of the likelihood of “violent

confrontation”).

In sum, these cases collectively demonstrate that, when comparing an offense to

generic burglary, other courts of appeals faithfully apply Stt?s command by

considering whether an offense’s locational element “focusles] upon circumstances

where burglary is likely to present a serious risk of violence.” St#it#, 1389 S. Ct. at

407. The Fourth Circuit’s failure to do the same contravenes Stitt, Taylor, and

Mathis, and cries out for this Court’s intervention.

Ii. THE FOURTH CIRCUIT'S DECISION CONTRAVENES 74 YZLOR FOR

ANOTHER REASON, NAMELY THAT IT COUNTS AS A VIOLENT

FELONY A STATUTE THAT DOES NOT REQUIRE ENTRY, AN

ESSENTIAL ELEMENT OF GENERIC BURGLARY

North Carolina breaking or entering is distinct from generic burglary in yet

another way: It can be completed without entry. In Taylor, this Court defined

generic burglary as having “the basic elements of unlawful or unprivileged entry

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

Taylor, 495 U.S. at 598. This understanding of generic burglary has been

repeatedly reaffirmed since then. See Mathis, 136 S. Ct. at 2248 (noting that

generic burglary consists of “unlawful or unprivileged entry into * * * a building or

other structure, with intent to commit a crime.” (quoting Taylor, 495 U.S. at 598);

Shepard vy. United States, 544 U.S. 18, 17 (2005) (same); James, 550 U.S. at 197

(same); Begay v. United States, 553 U.S. 137, 145 (2008) (same); Stitt, 139 S. Ct. at

405 (same); Quarles, 139 S. Ct. at 1875, 1877 (same). And this Court has further

20

explained that if a statute permits conviction without requiring an entry, it cannot

be a match for generic burglary. See Descamps, 570 U.S. at 277 (“Because generic

unlawful entry is not an element, or an alternative element, of [California Penal

Code Ann.] § 459, a conviction under that statute is never for generic burglary.”).

To qualify as generic burglary, a statute must require entry.

But North Carolina breaking or entering can be completed by breaking alone.

The plain text of Section 14-54(a) permits conviction on a finding of either breaking

or entering. N.C. Gen. Stat. § 14-54(a) (emphasis added). And the North Carolina

Supreme Court has explained that “by the disjunctive language of [14-54(a)], the

state meets its burden by offering substantial evidence that defendant either ‘broke’

or ‘entered’ the building with the requisite unlawful intent.” State v. Myrick, 291

S.E.2d 577, 579 (N.C. 1982). See also State v. Jones, 157 S.E.2d 610, 611 (N.C.

1967) (per curium) (holding that breaking a window with the intent to commit a

felony “therein completes the offense even though the defendant is interrupted or

otherwise abandons his purpose without actually entering the building”).

North Carolina courts of appeals continue to permit breaking or entering

convictions based solely on a finding of breaking. See State v. Watkins, 720 S.E.2d

844, 850 (N.C. Ct. App. 2012) (vacating a first-degree burglary conviction and

entering judgment on the lesser included offense of breaking or entering because

the State presented evidence of breaking but not of entry); State v. Lucas, 758

S.E.2d 672, 678 (N.C. Ct. App. 2014) “Although * * * the State failed to prove that

either Defendant actually entered the home * * * the entry of judgment on felonious

ai

breaking or entering is appropriate.”). North Carolina courts do not require proof of

entry to satisfy felonious breaking or entering. Because conviction under North

Carolina breaking or entering does not require proof of entry, it is broader than

generic burglary.

North Carolina’s breaking or entering statute permitting conviction solely on

proof of breaking, while rare, is not unique. Arkansas and Iowa also have statutes

whose text can be satisfied by proof of breaking alone. See Ark. Stat. Ann § 5-39-

202(a) “A person commits the offense of breaking or entering if for the purpose of

committing a theft or felony he or she breaks or enters into any [enumerated

structure or vehicle].”); Iowa Code Ann. § 713.1 “[O]r any person having such intent

[to commit a felony, assault, or theft therein] who breaks an occupied structure,

commits burglary.”). These statutes have been deemed categorically broader than

burglary, albeit on other grounds. See Mathis, 136 S. Ct. at 2257 (“Because the

elements of Iowa's burglary law are broader than those of generic burglary [by

covering vehicles in addition to structures], Mathis’s convictions under that law

cannot give rise to an ACCA sentence.”); United States v. Livingston, 442 F.3d 1082,

1087 (8th Cir. 2006) (‘We hold that breaking or entering a vehicle for purposes of

committing a theft under Arkansas law [§ 5-39-202] is not a violent felony for

purposes of the ACCA.”).

Courts considering attempted burglary statutes provide more guidance. Like

North Carolina breaking or entering, these statutes do not require entry. Indeed,

the North Carolina Supreme Court has described North Carolina breaking or

22

entering in terms strikingly similar to attempt, finding that when defendants

“opened the doorl,] although [defendants] had not entered” the building, felonious

breaking or entering “was complete upon the finding by the jury of the overt act and

felonious intent which was amply supported by the evidence.” State v. Nichols, 150

S.E.2d 21, 22 (N.C. 1996). Breaking, but not entering, is typically categorized as

attempted burglary or attempted breaking and entering. See, e.g., Commonwealth

v. Cotto, 752 N.E.2d 768, 772 (Mass. App. Ct. 2001) (“[A]ssume in the case at bar

that the defendant had broken the window, but upon seeing [a witness], dropped

the infernal device and ran. In this scenario, he may be found guilty of attempted

breaking and entering as well as attempted arson, but not of arson or breaking and

entering.”); People v. Austin, 799 P.2d 408, 409 (Colo. App. 1990) (finding that

“[tlampering with doors” without entry is either attempted burglary or attempted

trespass, depending on the intent); State v. Ison, 744 P.2d 416, 418 (Alaska Ct.

App. 1987) (finding that using a credit card to jimmy a lock but never physically

entering was not burglary because there was no entry; instead the defendant

committed only attempted burglary); State v. McCurdy, 487 P.2d 764, 764 (Ariz.

App. Ct. 1971) (upholding conviction where “[t]he court ruled as a matter of law

there was insufficient proof of actual entry but held there was sufficient proof to go

to the jury on the included offense of attempted burglary”).

Attempted burglary is not a violent felony under the ACCA. This Court, in

James, 550 U.S. 192, explained that Florida attempted burglary “is not ‘burglary’

because it does not meet the definition of burglary under ACCA that this Court set

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