Petition for Writ of Certiorari — Alfred Montgomery,III, Petitioner v. United States

Supreme Court briefFeb 8, 2021

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No. ___________

IN THE

Supreme Court of the United States

ALFRED MONTGOMERY, III,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

CLAUDE J. KELLY

FEDERAL PUBLIC DEFENDER

EASTERN DISTRICT OF LOUISIANA

CELIA C. RHOADS

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel of Record

500 Poydras Street, Suite 318

Hale Boggs Federal Building

New Orleans, Louisiana 70130

(504) 589-7930

celia_rhoads@fd.org

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether a state burglary offense is categorically broader than generic burglary

under the Armed Career Criminal Act when it can be committed without entry

into an enclosed space, such as simply walking under a carport, and can be

committed by breaking into structures designed to hold only property and not

people.

2. Whether a defendant who pleaded guilty to possessing a firearm as a felon, in

violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error

relief if the district court did not advise him that one element of that offense is

knowledge of his status as a felon, regardless of whether he can show that the

district court’s error affected the outcome of the proceedings.

The second question presented is the same question that is currently before this

Court in United States v. Gary, No. 20-444 (cert. granted Jan. 8, 2021).

Accordingly, if this Court determines that review of the first question presented

is unwarranted, the Court should hold Mr. Montgomery’s petition pending

resolution of Gary.

RELATED PROCEEDINGS

United States Court of Appeals for the Fifth Circuit:

United States v. Alfred Montgomery, III, No. 19-30469 (5th Cir. Sept. 10, 2020)

(reported at 974 F.3d 587)

United States District Court for the Eastern District of Louisiana:

United States v. Alfred Montgomery, III, No. 2:16-CR-225-1 (E.D. La. June 7,

2019)

TABLE OF CONTENTS

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

RELATED PROCEEDINGS.......................................................................................... ii

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

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

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

STATUTORY PROVISIONS INVOLVED .................................................................... 2

INTRODUCTION .......................................................................................................... 3

STATEMENT OF THE CASE ....................................................................................... 4

The Armed Career Criminal Act and “Generic Burglary.” ..................... 4

Louisiana Burglary of an Inhabited Dwelling. ....................................... 9

Proceedings Below. ................................................................................. 10

Independent Rehaif error. ...................................................................... 12

REASONS FOR GRANTING THE WRIT .................................................................. 15

The Fifth Circuit’s decision is wrong and illustrates continued

circuit confusion over how to harmonize the component parts of

this Court’s “generic burglary” precedent. ............................................ 16

II.

This issue is important, and Mr. Montgomery’s case is an ideal

vehicle to decide the question presented. .............................................. 20

III.

Even if this Court believes plenary review is unwarranted, the

Court should summarily reverse. .......................................................... 21

IV.

Alternatively, this Court should hold Mr. Montgomery’s petition

pending resolution of United States v. Gary. ........................................ 22

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

APPENDIX

iii

TABLE OF AUTHORITIES

Cases

Begay v. United States, 553 U.S. 137 (2008)..................................................... 6, 16, 21

Descamps v. United States, 570 U.S. 254 (2013) .................................................... 4, 17

Grady v. North Carolina, 575 U.S. 306 (2015) ........................................................... 21

Greer v. United States, 938 F.3d 766 (6th Cir. 2019) ................................................. 19

James v. United States, 550 U.S. 192 (2007) .......................................................... 6, 16

Malone v. United States, 791 F. App’x 543 (6th Cir. 2019) .................................... 9, 19

Martinez v. Illinois, 572 U.S. 833 (2014) .................................................................... 21

Maryland v. Kulbicki, 136 S. Ct. 2 (2015) .................................................................. 21

Mathis v. United States, 136 S. Ct. 2243 (2016) ............................................. 4, 7, 8, 11

Shepard v. United States, 544 U.S. 13 (2005) .................................................. 6, 11, 16

State v. Bryant, 775 So. 2d 596 (La. App. 2000) ......................................................... 10

State v. Ennis, 97 So. 3d 575 (La. App. 2012) ............................................................. 10

State v. Harris, 470 So.2d 601 (La. App. 1985) .......................................................... 10

State v. Mitchell, 181 So. 3d 800 (La. App. 2015) ......................................................... 9

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

United States v. Albornoz-Albornoz, 770 F.3d 1139 (5th Cir. 2014) .......................... 12

United States v. Dodge, 963 F.3d 379 (4th Cir. 2020) ................................................ 19

United States v. Gary, No. 20-444 (cert. granted Jan. 8, 2021) .......................... passim

United States v. Jones, 951 F.3d 1138 (9th Cir. 2019) ............................................... 19

United States v. Lavalais, 960 F.3d 180 (5th Cir. 2020) ........................................ 1, 13

United States v. Montgomery, 974 F.3d 587 (5th Cir. 2020) ...................... 1, 11, 13, 16

United States v. Stitt, 139 S. Ct. 399 (2018) ....................................................... passim

United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) ................................................... 17

Statutes

18 U.S.C. § 922 ..................................................................................................... passim

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

18 U.S.C. § 924 ........................................................................................................... 2, 4

21 U.S.C. § 841 ............................................................................................................. 10

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

Iowa Code § 702.12 ........................................................................................................ 7

La. R.S. 14:62.2 .................................................................................................... passim

Tenn. Code Ann. § 39–14–401 ....................................................................................... 8

Other Authorities

Model Penal Code § 221.1 (1980) .................................................................................. 5

U.S.S.G. App. C, amend. 798................................................................................... 3, 20

IN THE

Supreme Court of the United States

ALFRED MONTGOMERY, III,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner Alfred Montgomery, III, respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Fifth Circuit.

OPINION BELOW

The Fifth Circuit’s published decision affirming Mr. Montgomery’s conviction

and sentence under 18 U.S.C. § 922(g), United States v. Montgomery, 974 F.3d 587

(5th Cir. 2020), is included as an appendix.

JURISDICTION

The judgment of the Fifth Circuit Court of Appeals was entered on

September 10, 2020. No petition for rehearing was filed. 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 a Sunday, this petition is being timely filed on February 8,

2021. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 922(g) states in relevant part:

It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year; . . .

to . . . possess in or affecting commerce, any firearm or ammunition . . . .

18 U.S.C. § 924(e)(2)(B) defines the term “violent felony,” in relevant part, as:

[A]ny 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 the use of explosives, or

otherwise involves conduct that presents a serious potential risk

of physical injury to another.

La. R.S. 14:62.2 defines simple burglary of an inhabited dwelling as:

the unauthorized entry of any inhabited dwelling, house, apartment, or

other structure used in whole or in part as a home or place of abode by

a person or persons with the intent to commit a felony or any theft

therein[.]

INTRODUCTION

The primary question presented by this Petition arises from sustained

confusion among the Courts of Appeal over how to apply this Court’s generic

definition of “burglary” for purposes of the Armed Career Criminal Act—a hugely

impactful statutory sentencing enhancement that transforms the ten-year maximum

sentence for certain firearms offenses to a harsh, fifteen-year mandatory minimum.

This confusion has resulted in arbitrary treatment of similarly situated defendants,

great unpredictability in sentencing, and, as this case illustrates, an expansion of the

meaning of “burglary” to reach conduct that no longer resembles the generic version

of the offense first described by this Court in Taylor v. United States. Indeed, courts

have so struggled with identifying and applying a uniform, generic definition of

burglary that the Sentencing Commission gave up entirely—removing burglary from

a parallel Sentencing Guidelines provision. See U.S.S.G. App. C, amend. 798.

Perhaps most intractable is the ongoing confusion over how to determine what

types structures fall under the reach of so-called “generic burglary.” The Fifth

Circuit’s decision below illustrates that confusion, abandoning this Court’s previous

focus on the function and physical features of a structure, in favor of a bright-line rule

that all structures—even those that are wholly unenclosed and those designed to

exclusively house property rather than people—can be burglarized, so long as they

are sufficiently near a residence. The Fifth Circuit is not alone in its inability to

reconcile the various component parts of this Court’s long line of “generic burglary”

jurisprudence, and this Court’s intervention is necessary to correct course.

STATEMENT OF THE CASE

A. The Armed Career Criminal Act and “Generic Burglary.”

The Armed Career Criminal Act imposes a fifteen-year mandatory minimum

prison sentence on those convicted of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g) if they have three prior convictions for a violent felony

or serious drug offense. 18 U.S.C. § 924(e)(1). As relevant here, the term “violent

felony” is defined to include “any . . . burglary, arson, or extortion” that is “punishable

by imprisonment for a term exceeding one year.” § 924(e)(2)(B). In listing those

enumerated offenses, this Court has held that “Congress referred only to their usual

or (in [the Court’s] terminology) generic versions—not to all variants of the offenses.”

Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (citing Taylor v. United States,

495 U.S. 575, 598 (1990)).

To determine whether a defendant’s prior conviction qualifies as one of those

enumerated crimes under ACCA, courts “compare the elements of the statute forming

the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e.,

the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257

(2013). Under this “categorical approach,” courts “focus solely on whether the

elements of the crime of conviction sufficiently match the elements of [the] generic

[offense], while ignoring the particular facts of the case.” Mathis, 136 S. Ct. at 2248.

A conviction for burglary, arson, or extortion only will qualify as an ACCA predicate

offense if the elements of the statute of conviction “are the same as, or narrower than,

those of the generic offense.” Id. (emphasis omitted). If, on the other hand, the prior

offense sweeps more broadly than the generic crime, it cannot serve as an ACCA

predicate, regardless of the “the defendant’s actual conduct (i.e., the facts of the

crime).” Id.

Application of the categorical approach to a prior burglary conviction requires

special care because of the wide variation in how that term is used from state to state.

As this Court explained in Taylor v. United States: “The word ‘burglary’ has not been

given a single accepted meaning by the state courts; the criminal codes of the States

define burglary in many different ways.” 495 U.S. at 580. Surveying ACCA’s

legislative history, historical sources, and model burglary provisions, the Court in

Taylor ultimately defined generic burglary for ACCA purposes as the “unlawful or

unprivileged entry into, or remaining in, a building or other structure, with intent to

commit a crime.” 495 U.S. at 598. In doing so, the Court drew upon the Model Penal

Code’s definition of burglary: “A person is guilty of burglary if he enters a building or

occupied structure, or separately secured or occupied portion thereof, with purpose to

commit a crime therein, unless the premises are at the time open to the public or the

actor is licensed or privileged to enter.” Id. at 598 n.8 (quoting Model Penal Code

§ 221.1 (1980)). And the Court stressed that this categorical approach inevitably

would result in the exclusion of some state burglary statutes from ACCA’s reach if,

for example, they “eliminate[ed] the requirement that the entry be unlawful,” or

“include[ed] places, such as automobiles and vending machines, other than

buildings.” Id. at 599 (emphasis added).

The Court’s analysis also took into account congressional intent and the

context in which “burglary” is used in the statute—i.e., within the umbrella of the

term “violent felony.” The Court observed that burglary’s inclusion in ACCA was

based on the inherent dangerousness of that particular crime in its typical form,

explaining:

Congress singled out burglary (as opposed to other frequently committed

property crimes such as larceny and auto theft) for inclusion as a

predicate offense, both in 1984 and in 1986, because of its inherent

potential for harm to persons. 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. And the offender’s own awareness of this

possibility may mean that he is prepared to use violence if necessary to

carry out his plans or to escape.

Id. at 588; see also Begay v. United States, 553 U.S. 137, 144–45 (2008) (observing

that ACCA’s enumerated offenses “all typically involve purposeful, violent, and

aggressive conduct” (internal quotation marks omitted)).

Since Taylor, this Court has addressed the scope of generic burglary on

numerous occasions—most relevant here, clarifying the meaning of the “building and

other structure” element of generic burglary’s definition and the types of places that

so qualify under the uniform, generic conception of the crime. For example, in

Shepard v. United States, the Court explained that ACCA “makes burglary a violent

felony only if committed in a building or enclosed space . . . , not in a boat or motor

vehicle.” 544 U.S. 13, 15‒16 (2005) (emphasis added). Along those same lines, the

Court noted in James v. United States that Florida burglary’s inclusion of entry onto

a dwelling’s curtilage rendered the statute broader than generic burglary. 550 U.S.

192, 212 (2007), overruled on other grounds, Johnson v. United States, 576 U.S. 591

(2015). The Court explained: “[T]he inclusion of curtilage takes Florida’s underlying

offense of burglary outside the definition of ‘generic burglary’ set forth in Taylor,

which requires an unlawful entry into, or remaining in, ‘a building or other

structure.’” Id. (emphasis in original) (quoting Taylor, 495 U.S. at 598).

Two subsequent cases endeavored to define the line between non-building

structures that can be burglarized and those that will fall outside of generic

burglary’s reach—making clear that the function of those spaces is the key

consideration. First, in Mathis, this Court agreed that an Iowa burglary statute was

broader than generic burglary. 136 S. Ct. at 2250. In doing so, the Court noted that

Taylor’s definition of generic burglary requires unlawful entry into a “building or

other structure,” but Iowa burglary covers “a broader range of places,” namely “any

building, structure, . . . land, water or air vehicle, or similar place adapted for

overnight accommodation of persons [or used] for the storage or safekeeping of

anything of value”—which Iowa courts had construed to covered ordinary vehicles

because they can be used for storage or safekeeping. Id.; Iowa Code § 702.12 (2013);

United States v. Stitt, 139 S. Ct. 399, 407 (2018) (summarizing the Iowa statute at

issue in Mathis). In other words, Mathis held that “burglary of certain nontypical

structures and vehicles fell outside the scope of the federal Act’s statutory word

‘burglary.’’’ Stitt, 139 S. Ct. at 407.

In Stitt v. United States, however, the Court clarified for the first time that not

all nontypical structures and vehicles fall outside of generic burglary’s reach; the

function of those places matters. The Court held that the generic definition

encompasses any “burglary of a nonpermanent or mobile structure that is adapted or

used for overnight accommodation.” 139 S. Ct. at 404, 406. The Court reasoned that

“[a]n offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or

another structure that is adapted for or customarily used for lodging runs a similar

or greater risk of violent confrontation” compared to one who breaks into a home. Id.

at 406. In other words, the Court distinguished between nontypical structures that

are designed or adapted to hold people, versus those whose only function is to hold

property, such as those covered by the Iowa statute in Mathis. See id. at 407

(distinguishing Iowa’s burglary statute on the ground that courts “construed that

statute to cover ordinary vehicles because they can be used for storage or

safekeeping”).

In passing, the Court also rejected an alternative argument that Tennessee’s

burglary statute is broader than generic burglary because it “covers the burglary of a

‘structure appurtenant to or connected with’ a covered structure or vehicle,” a

provision the defendant urged included “the burglary of even ordinary vehicles that

are plugged in or otherwise appurtenant to covered structures.” Id. at 406 (emphasis

added) (quoting Tenn. Code Ann. § 39–14–401(1)(C)). The Court explained that this

“appurtenant” provision did not, as the defendant suggested, cover ordinary vehicles

merely positioned near houses, but only “structures,” and therefore was not fatal to

the statute’s ability to fit within the generic burglary definition.

At least two circuits—the Sixth and now the Fifth in this case—have read that

passing reference in Stitt to mean that any structure—no matter its form or

function—necessarily will fall within the scope of generic burglary so long as it is

appurtenant to or connected with a home. See United States v. Montgomery, 947 F.3d

587, 593 (5th Cir. 2020) (“[T]he Supreme Court expressly held in Stitt that generic

burglary covers ‘burglary of a structure appurtenant to or connected with a covered

structure.’”); Malone v. United States, 791 F. App’x 543, 546 (6th Cir. 2019) (“[T]he

Stitt

Court

held,

when

considering

the

same

Tennessee

statute,

that appurtenant structures fall within the generic burglary definition.”).

B. Louisiana Burglary of an Inhabited Dwelling.

At issue in this case is whether Louisiana burglary of an inhabited dwelling is

a categorical match for generic burglary. That statute—La. R.S. 14:62.2—

encompasses “the unauthorized entry of any inhabited dwelling, house, apartment,

or other structure used in whole or in part as a home or place of abode by a person or

persons with the intent to commit a felony or any theft therein[.]” Importantly,

Louisiana courts interpret the phrase “any inhabited dwelling . . . or other structure

used in whole or in part as a home or place of abode” to include certain unenclosed

spaces that are merely adjacent to the dwelling itself. Indeed, merely walking under

a carport—consisting of four poles and no walls—and taking an object from that space

qualifies as burglary of an inhabited dwelling in Louisiana. See, e.g., State v. Mitchell,

181 So. 3d 800 (La. App. 2015) (surveying cases and affirming La. R.S. § 14:62.2

conviction for taking a four-wheeler from under a carport).

Louisiana courts also include within the statute’s reach uninhabitable

structures designed to house property, not people—such as sheds and storerooms—

so long as those structures are proximate to a dwelling. State v. Bryant, 775 So. 2d

596, 599 (La. App. 2000) (affirming La. R.S. § 14:62.2 conviction for taking tools from

a carport storeroom); State v. Harris, 470 So.2d 601, 602‒03 (La. App. 1985) (same).

Indeed, attempting to break the window of a shed located on the curtilage of a

residence qualifies as burglary of an inhabited dwelling in Louisiana. See State v.

Ennis, 97 So. 3d 575, 578-79 (La. App. 2012).

C. Proceedings Below.

In June 2016, Alfred Montgomery sold a pistol to an undercover officer in a

Piggly Wiggly parking lot for $200. Later that month, he sold a second firearm to the

same undercover officer, again for $200, and the officer also purchased a small

amount of marijuana for $20. As a result, in December 2016, Mr. Montgomery was

charged with two counts of being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1), and a single count of distributing a quantity of marijuana, in

violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(D). Mr. Montgomery ultimately

pleaded guilty to all three counts.

Mr. Montgomery’s Pre-sentence Report (PSR) described three prior

convictions. First, in October 2007 at the age of 18, Mr. Montgomery was arrested for

the sale of cocaine in Mississippi. Second, in April 2009 at the age of 19,

Mr. Montgomery was arrested for simply burglary of an inhabited dwelling in

Louisiana. And, finally, in August 2010 at the age of 21, Mr. Montgomery was

arrested for burglary of a dwelling in Mississippi. The PSR initially calculated

Mr. Montgomery’s advisory sentencing Guidelines Range as 46 to 57 months, with a

statutory maximum sentence of ten years for the § 922(g) counts and five years for

the marijuana count. At the government’s urging, however, the PSR revised that

calculation, concluding that Mr. Montgomery qualified as a career offender under

ACCA. In addition to ACCA’s 15-year mandatory minimum for each firearm count,

application of the enhancement caused Mr. Montgomery’s Guidelines range to nearly

triple, becoming 151 to 188 months of imprisonment—or, practically, 180 to 188

months due to ACCA’s mandatory minimum.

The defense objected, arguing, in relevant part, that the Louisiana burglary

statute under which Mr. Montgomery was convicted—La. R.S. 14:62.2—is

categorically broader than generic burglary and therefore does not qualify as a violent

felony predicate under ACCA. The district court sided with the government and,

applying ACCA’s enhancement, sentenced Mr. Montgomery to the 180-month

mandatory minimum as to each firearm count and 60 months as to the marijuana

count, all to run concurrently with one another.

The Fifth Circuit affirmed, rejecting Mr. Montgomery’s argument that

Louisiana burglary is broader than generic burglary because it encompasses

unenclosed spaces and structures designed to hold only property and not people. In

doing so, the court also rejected the contention, stated by this Court in Shepard, that

generic burglary is limited to “enclosed spaces,” as well as the contention, supported

by Mathis and Stitt, that non-typical structures only fall under burglary’s generic

definition if they are either adapted or customarily used for overnight

accommodation. Montgomery, 974 F.3d at 593. Instead, seizing on this Court’s line in

Stitt about “appurtenant structures,” the court held that all “buildings [and]

structures”—regardless of their form or function—fall within generic burglary so long

as they are “appurtenant to or connected with a covered structure.” Id. (quoting Stitt,

139 S. Ct. at 406–07). The Court concluded: “Because the Louisiana cases

Montgomery cites all concerned a structure appurtenant to or connected with a

residential home, he has failed to show that any Louisiana court ‘has applied the

statute in a broader manner’” than generic burglary. Id. (quoting United States v.

Albornoz-Albornoz, 770 F.3d 1139, 1141 (5th Cir. 2014)).

D. Independent Rehaif error.

In addition to the ACCA error, Mr. Montgomery also raised an independent

issue on appeal arising from this Court’s decision in Rehaif v. United States—an issue

that this Court already is set to review in United States v. Gary, No. 20-444 (cert.

granted Jan. 8, 2021). In Rehaif—decided immediately after Mr. Montgomery filed

his notice of appeal to the Fifth Circuit—this Court held for the first time that, for

convictions under § 922(g), the government must show not only “that the defendant

knew he possessed a firearm” but also “that he knew he had the relevant status when

he possessed it” (commonly referred to as the “knowledge-of-status” element). Rehaif

v. United States, 139 S. Ct. 2191, 2194 (2019).

While the indictment in Mr. Montgomery’s case alleged that he knowingly

possessed a gun with respect to the two § 922(g) counts, it did not allege that he knew

of his relevant status that prohibited him from possessing a firearm—i.e., that he was

a felon. Like the indictment, the factual basis drafted by the government and signed

by the parties in support of the plea did not state that Mr. Montgomery knew that he

had the relevant prohibited status at the time he possessed the gun, and

Mr. Montgomery at no time stipulated to that fact. At Mr. Montgomery’s plea

hearing, the district judge explained the elements of § 922(g) before accepting

Mr. Montgomery’s plea but did not notify him of the knowledge-of-status element.

Thus, on appeal to the Fifth Circuit, Mr. Montgomery urged that this Court’s

intervening decision in Rehaif required vacatur of his conviction. Specifically,

Mr. Montgomery argued that the lack of notice of the crime’s elements and his

resulting unknowing and involuntary guilty plea required automatic reversal under

the structural error doctrine, despite the fact that the error was unpreserved. In the

alternative, Mr. Montgomery argued that he could satisfy the elements of plain error

review.

In accordance with circuit precedent decided shortly after briefing in

Mr. Montgomery’s case was complete, the Fifth Circuit rejected his structural error

argument. Montgomery, 974 F.3d at 590 (citing United States v. Lavalais, 960 F.3d

180, 186 (5th Cir. 2020)). Applying plain error review, the court concluded that

Mr. Montgomery failed to demonstrate “a reasonable probability that, but for the

error, he would not have entered the plea, and therefore he has not shown that the

district court’s error affected his substantial rights.” Id. at 591. Under the circuit’s

demanding prejudice inquiry applicable to Rule 11 defects—i.e., errors in the district

court’s plea colloquy—the court determined that Mr. Montgomery could not make

that showing and therefore affirmed his conviction.

Last month, this Court granted certiorari in Gary to address the same issue

raised by Mr. Montgomery in his appeal, namely, whether a defendant who pleaded

guilty to possessing a firearm as a felon is automatically entitled to plain-error relief

if the district court did not advise him that one element of that offense is knowledge

of his status as a felon, regardless of whether he can show that the district court’s

error affected the outcome of the proceedings.

REASONS FOR GRANTING THE WRIT

The Fifth Circuit erred in concluding that Louisiana burglary of an inhabited

dwelling categorically qualifies as a generic burglary and, in doing so, created a

peculiar bright-line rule that ignores the form and function of a burglarized structure

in favor of a strict focus on a structure’s proximity to a brick and mortar home. That

rule re-writes this Court’s caselaw, ignoring the requirement that burglarized spaces

must at least be enclosed, as well as this Court’s focus on the function of nontypical

structures and its warning that a home’s curtilage does not fall under generic

burglary’s scope.

Indeed, the Fifth Circuit’s misread of Stitt and resulting rule promises to create

absurd results—pulling within generic burglary’s reach crimes that bear no

resemblance to the offense described in Taylor, such as merely stealing a package

from a front porch or simply walking into a gazebo on a home’s curtilage to snatch an

object contained therein. At least two circuits appear now to have incorporated this

misread of Stitt into their ACCA jurisprudence—an error that not only conflictd with

this Court’s caselaw, but also is in tension with circuit cases that rightfully have

focused on the form and function of structures covered by state burglary statutes,

rather than their mere proximity to dwellings. This case provides an ideal vehicle for

clarifying Stitt’s discussion of “appurtenant structures” and for reconciling that

discussion with this Court’s past treatment of the “building and other structure”

element of generic burglary described in Taylor.

The Fifth Circuit’s decision is wrong and illustrates continued

circuit confusion over how to harmonize the component parts of

this Court’s “generic burglary” precedent.

This Court has made clear that, when determining whether a state burglary

offense falls within the bounds of generic burglary for ACCA purposes, both the form

and function of the spaces encompassed by the statute matter. Indeed, only enclosed

spaces can be burglarized within the meaning of the offense’s generic definition, see

Shepard, 544 U.S. at 15‒16, and mere curtilage always is excluded, see James, 550

U.S. at 212. Moreover, this Court has drawn a clear line based on a structure’s use:

breaching spaces designed only to safeguard property rather than hold people is not

the type of offense that fits within the standard, generic understanding of burglary.

See Stitt, 139 S. Ct. at 407. That makes sense: Congress did not intend to bring broad

swaths of nonviolent property crime within ACCA’s scope. Instead, Congress

enumerated a specific set of offenses that “typically involve purposeful, violent, and

aggressive conduct.” Begay, 553 U.S. at 144–45. Burglary so qualifies because it

typically requires entry into an enclosed space where people typically may be found,

raising the possibility of a dangerous confrontation with an occupant. Taylor, 495

U.S. at 588.

The Fifth Circuit ignored these commands, instead adopting a bright-line rule

based on a misread of this Court’s decision in Stitt: generic burglary covers any

structure—regardless of its form or function—so long as it is “appurtenant to or

connected with a residential home.” Montgomery, 974 F.3d at 593. That is true,

according to the Fifth Circuit, regardless of whether the intruded upon space is

unenclosed and regardless of whether the breached structure was specifically

designed to hold property and not people. This broad definition includes merely

walking under a carport with no walls to remove an item, as well as breaking into a

shed—behavior that should have rendered La. R.S. 14:62.2 broader than generic

burglary and, therefore, an invalid ACCA predicate. See, e.g., Mitchell, 181 So. 3d at

800; Ennis, 97 So. 3d at 578‒79.

But the Fifth Circuit’s conception of burglary reaches further even than

carports and utility sheds. Indeed, under the Fifth Circuit’s view, generic burglary

would include walking onto a front porch to snatch a package. Even “gazebos” and

“doll houses” would qualify as covered structures in the Fifth Circuit’s view, so long

as they were appurtenant to a brick and mortar residence. United States v. Stitt, 860

F.3d 854, 879 (6th Cir. 2017), rev’d, 139 S. Ct. 399 (2018) (Sutton, J., dissenting).

That, of course, is not “burglary” as this Court has understood it. Indeed, “[a] wouldbe burglar cannot ‘break and enter’ into those structures because, as a matter of

function, they’re not designed to house people and property securely.” Id. And, as a

matter of simple logic, a would-be burglar cannot “break and enter” into a carport,

because there is nothing to “break into” nor anything to “enter into.” See Descamps,

570 U.S. at 261 (explaining that generic burglary requires elements of “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to

commit a crime” (emphasis added)).

In other words, the intended function of the structure necessarily matters, as

does its physical features—required considerations that the Fifth Circuit expressly

eliminated from the analysis in favor of an approach that considers mere proximity

to a residence. See Montgomery, 947 F.3d at 593 (rejecting the argument that “the

‘building or structure’ component of generic burglary is limited to buildings, enclosed

spaces, and structures or vehicles adapted or customarily used for overnight

accommodation”). That a plainly disqualified structure—such as a gazebo—may be

proximate to a qualifying one—such as a house—does not cure its own fatal defects.

The Fifth Circuit’s decision illustrates the inter-circuit (and even intra-circuit)

confusion over whether Stitt intended a rule that all non-traditional structures are

included in generic burglary’s reach so long as they are appurtenant to a traditional

residence or, alternatively, whether covered nontypical structures are limited to those

that are themselves intended for overnight accommodation. Importantly, Louisiana’s

burglary of a dwelling statute encompasses structures intended only for keeping

property and not people—such as sheds—so long as they are near a dwelling. See,

e.g., Ennis, 97 So. 3d at 578‒79. But this Court has made clear that the function of a

nontypical structure will dictate whether or not it falls within the scope of generic

burglary. Indeed, when this Court held that regular tents and regular vehicles fell

outside of generic burglary’s reach, there was no caveat that those structures were

somehow transformed into places that could be burglarized so long as they sat

sufficiently close to a brick and mortar residence. Stitt’s caveat, instead, focused on

function: if those structures were used or adapted for overnight accommodation, they

were covered structures under generic burglary.

The Fifth Circuit is not alone in its confusion on this point. Although the

Fourth

Circuit

has

acknowledged

that

there

“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,” the court nonetheless determined that Stitt was not sufficiently clear on

the point to undo circuit precedent to the contrary. United States v. Dodge, 963 F.3d

379, 384 (4th Cir. 2020); see also id. (“[W]e are faced with prior Fourth Circuit

precedent that could be read as being in tension with intervening Supreme Court

reasoning but no directly applicable Supreme Court holding.”). In other words, courts

are struggling to untangle Stitt’s limited inclusion of certain nontypical structures

within generic burglary and to determine what Stitt means for nontypical structures

not used to house people.

Notably, unlike the Fourth and Fifth Circuits, some circuits have endeavored

to differentiate between structures intended for habitation versus those used only

“for the storage or safekeeping of property”—recognizing that function does matter.

See, e.g., United States v. Jones, 951 F.3d 1138 (9th Cir. 2019) (noting that, because

Colorado’s statutory definition of “building” included “structures that are designed to

shelter only property,” it covered “significantly more than the generic [burglary]

element of ‘building or other structure’”); Greer v. United States, 938 F.3d 766, 776‒

77 (6th Cir. 2019) (determining that an Ohio aggravated burglary statute that

“cover[ed] an expansive array of structures” aligned with generic burglary because of

the additional requirement that a person either be “present” or “likely to be present,”

which “restrict[ed] the statute’s scope to only those structures that carry an increased

risk of a violent encounter between perpetrator and occupant”). But see Malone, 791

F. App’x at 546 (the Sixth Circuit suggesting that all “structures” fall under generic

burglary so long as they are appurtenant to or connected with a dwelling).

Thus, the Fifth Circuit’s decision not only is wrong, but there now is circuit

tension over how to reconcile Stitt’s passing mention to “appurtenant structures” with

this Court’s other cases defining the bounds of Taylor’s “buildings or other structures”

element of generic burglary. Review of the question presented here would resolve this

confusion and ensure uniformity and fair treatment of criminal defendants affected

by ACCA’s harsh mandatory minimum.

II.

This issue is important, and Mr. Montgomery’s case is an ideal

vehicle to decide the question presented.

The question presented has ramifications well beyond Mr. Montgomery’s case

and even beyond the Louisiana statute at issue. Courts have consistently struggled

with application of the generic burglary definition under this broadly applicable and

hugely impactful sentencing statute. Indeed, the confusion over this issue has been

so intractable that the Sentencing Commission abandoned the offense entirely in its

parallel career offender provision. See U.S.S.G. App. C, amend. 798. Moreover, circuit

division over the types of structures that qualify under generic burglary results in

unfair and improper disparate treatment of numerous ACCA defendants, based solely

on the jurisdiction in which they are sentenced. That defies ACCA’s purpose, which

Congress intended to create a uniform approach to sentencing enhancements—to

avoid “the vagaries of state law” and to “protect offenders from the unfairness of

having enhancement depend upon the label employed by the State of conviction.”

Taylor, 495 U.S. at 588‒89.

Mr. Montgomery’s case is an ideal vehicle for deciding the question presented.

This issue was thoroughly pressed and passed upon at every stage of

Mr. Montgomery’s case and is therefore well preserved and ready for this Court’s

review. Moreover, the question presented here is outcome determinative. Absent

qualification based on his conviction under La. R.S. 14:62.2, Mr. Montgomery would

not have been subjected to ACCA’s sentencing enhancement—without which he faced

a ten year maximum sentence and an advisory Sentencing Guidelines range of 46 to

57 months. If he had received a sentence within that range, Mr. Montgomery—who

entered federal custody in January 2017—would be nearing his release date or

already would have completed his sentence. Instead, he now is serving a fifteen-year

sentence and will not be released until 2029.

III.

Even if this Court believes plenary review is unwarranted, the

Court should summarily reverse.

The Fifth Circuit’s decision so plainly conflicts with this Court’s precedents

that the Court should, in the alternative, summarily reverse. See Maryland v.

Kulbicki, 136 S. Ct. 2, 3 (2015); Martinez v. Illinois, 572 U.S. 833, 843 (2014); Grady

v. North Carolina, 575 U.S. 306, 311 (2015). Under Taylor and its progeny, simply

walking under an open structure with no walls, picking up an object, and walking

away plainly does not qualify under the generic definition of burglary, as it does not

require entry into an enclosed space. Nor does the inclusion of such offenses under

ACCA’s reach further Congress’s intent to include enumerated offenses that

“typically involve purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at

144–45. Indeed, simply snatching an object from underneath an open carport bears

no resemblance to the particularly dangerous crime envisioned in Taylor and its

progeny, namely, a person’s unlawful entry into a building or other enclosed space,

which “often creates the possibility of a violent confrontation between the offender

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

495 U.S. at 588.

Moreover, the Fifth Circuit’s blanket rule that any structure appurtenant to a

residence necessarily qualifies as covered structure under the generic burglary

definition promises to lead to more absurd results, such as inclusion of offenses like

merely stealing a package from a front porch. And, unless this Court clarifies the

bounds of generic burglary promptly, similarly situated defendants will receive vastly

different sentences, depending upon the circuit in which they happened to have been

sentenced.

Whether through plenary review or summary reversal, this Court should

intervene.

IV.

Alternatively, this Court should hold Mr. Montgomery’s petition

pending resolution of United States v. Gary.

If this Court determines that review of Mr. Montgomery’s first question

presented is unwarranted, he respectfully urges this Court to hold his Petition

pending resolution of United States v. Gary, No. 20-444 (cert. granted Jan. 8, 2021).

Briefing is currently under way in that case, which presents the second question

raised by this Petition, namely, whether a defendant who pleaded guilty to possessing

a firearm as a felon is automatically entitled to plain-error relief if the district court

did not advise him that one element of that offense is knowledge of his status as a

felon, regardless of whether he can show that the district court’s error affected the

outcome of the proceedings.

Even if this Court ultimately determines that automatic reversal under the

structural error doctrine is inappropriate and that some prejudice showing under

plain error review is required, this Court still should vacate the Fifth Circuit’s

judgment and remand Mr. Montgomery’s case for further consideration in light of the

standard announced. As illustrated by this case and others, the Fifth Circuit applies

a hyper-restrictive view of the “substantial rights” requirement of the plain error

standard in this context. See, e.g., Lavalais, 960 F.3d at 187 (holding that a defendant

could not show that there was “reasonable probability that he would not have pled

guilty had he known of Rehaif,” because, “[i]n his factual basis, [he] admitted that he

was a felon convicted of a crime punishable by more than one year”). Accordingly,

even if this Court ultimately determines that Rehaif error is not structural error

mandating automatic reversal and articulates a different review framework instead,

this Court should remand Mr. Montgomery’s case to the Fifth Circuit for

consideration of his Rehaif claim under that correct prejudice framework.

CONCLUSION

For the foregoing reasons, Mr. Montgomery respectfully requests that his

petition for a writ of certiorari be granted with respect to the first question presented.

In the alternative and with respect to the second question presented,

Mr. Montgomery respectfully requests that his petition be held pending this Court’s

resolution of United States v. Gary, No. 20-444 (cert. granted Jan. 8, 2021).

Respectfully submitted February 8, 2021,

/s/ Celia C. Rhoads