Petition for Writ of Certiorari — Sedric Rashad Marion, Petitioner v. United States
Supreme Court briefFeb 12, 2021
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No. _______
IN THE
Supreme Court of the United States
SEDRIC RASHAD MARION,
Petitioner,
v.
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
ERIC JOSEPH BRIGNAC
CHIEF APPELLATE ATTORNEY
Counsel of Record
EASTERN DISTRICT OF NORTH CAROLINA
150 Fayetteville St.
Suite 450
Raleigh, N.C. 27601
(919) 856-4236
eric_brignac@fd.org
Counsel for Petitioner
i
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.
ii
LIST OF ALL DIRECTLY RELATED PROCEEDINGS
United States Court of Appeals for the Fourth Circuit:
United States v. Marion, 821 F. App’x 264 (4th Cir. Case No. 19-4106, Sept.
18, 2020).
United States District Court for the Eastern District of North Carolina:
United States v. Marion, No. 4:16-CR-73-FL-1
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
LIST OF ALL DIRECTLY RELATED PROCEEDINGS ............................................. ii
TABLE OF AUTHORITIES ......................................................................................... iv
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
STATUTORY PROVISIONS INVOLVED .................................................................... 2
INTRODUCTION .......................................................................................................... 3
STATEMENT ................................................................................................................. 4
REASONS FOR GRANTING THE PETITION ............................................................ 7
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 ........................... 7
A. The Fourth Circuit ignored the clear command of this Court's
precedents……………………………………………………………...8
B. The Fourth Circuit's decision departs markedly from how other
federal courts of appeals analyze burglary offenses under the
ACCA post-Stitt……………………………………………………….12
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………………………….16
III.
THIS ISSUE IS IMPORTANT AND RECURS FREQUENTLY………………21
IV.
THIS IS AN EXCELLENT VEHICLE TO DECIDE THE QUESTION
PRESENTED………………………………………………………………………….22
V.
THIS COURT MAY WISH TO HOLD THIS PETITION FOR THE
RESOLUTION OF THE PETITION IN DODGE V. UNITED
STATES………………………………………………………………………………...22
CONCLUSION............................................................................................................. 23
APPENDIX: Opinion of the U.S. Court of Appeals for the Fourth Circuit (Jun. 30,
2020)........................................................................................................................ 1a
iv
TABLE OF AUTHORITIES
CASES
Commonwealth v. Cotto,
752 N.E.2d 768 (Mass. App. Ct. 2001) .................................................................... 18
Descamps v. United States,
570 U.S. 254 (2013) .............................................................................................. 5, 16
Greer v. United States,
938 F.3d 766 (6th Cir. 2019) ................................................................................ 13-14
James v. United States,
550 U.S. 192 (2007) .................................................................................................... 9
Johnson v. United States,
559 U.S. 133 (2010) ................................................................................................. 4-5
Johnson v. United States,
576 U.S. 591 (2015) .......................................................................................... 4, 9, 19
Mathis v. United States,
136 S. Ct. 2243 (2016) .......................................................................................passim
People v. Austin,
799 P.2d 408 (Colo. App. 1990) ................................................................................ 18
Quarles v. United States,
139 S. Ct. 1872 (2019) ................................................................................................ 9
State v. Batts,
617 S.E.2d 724 (N.C. Ct. App. 2005) ....................................................................... 11
State v. Bost,
286 S.E.2d 632 (N.C. Ct. App. 1982) . ...................................................................... 11
State v. Ison,
744 P.2d 416 (Alaska Ct. App. 1987) .................................................................. 18-19
State v. Jones,
157 S.E.2d 610 (N.C. 1967) (per curiam) ................................................................. 16
v
State v. Lucas,
758 S.E.2d 672 (N.C. Ct. App. 2014) ....................................................................... 17
State v. McCurdy,
487 P.2d 764 (Ariz. App. Ct. 1971) .......................................................................... 19
State v. Myrick,
291 S.E.2d 577 (N.C. 1982) ...................................................................................... 16
State v. Nichols,
150 S.E.2d 21 (N.C. 1996) ........................................................................................ 18
State v. Taylor,
428 S.E.2d 273 (N.C. Ct. App. 1993) ....................................................................... 11
State v. Watkins,
720 S.E.2d 844 (N.C. Ct. App. 2012) ....................................................................... 17
Taylor v. United States,
495 U.S. 575 (1990) ...........................................................................................passim
United States v. Dodge,
963 F.3d 379 (4th Cir. 2020) ..................................................................... 3, 12, 21-22
United States v. Evans,
924 F.3d 21 (2d Cir. 2019) ....................................................................................... 19
United States v. Jones,
951 F.3d 1138 (9th Cir. 2019) ............................................................................. 12-13
United States v. Livingston,
442 F.3d 1082 (8th Cir. 2006) .................................................................................. 18
United States v. Martinez,
954 F.2d 1050 (5th Cir. 1992) .................................................................................. 20
United States v. Montgomery,
974 F.3d 587 (5th Cir. 2020) .................................................................................... 15
United States v. Mungro,
754 F.3d 267 (4th Cir. 2014) .............................................................................passim
United States v. Sims,
933 F.3d 1009 (8th Cir. 2019) ............................................................................. 14-15
vi
United States v. Smith,
645 F.3d 998 (8th Cir. 2011) .................................................................................... 20
United States v. Stitt,
139 S. Ct. 399 (2018) .........................................................................................passim
United States v. Strahl,
958 F.2d 980 (10th Cir. 1992) .................................................................................. 20
United States v. Thomas,
2 F.3d 79 (4th Cir. 1993) .......................................................................................... 20
Van Cannon v. United States,
890 F.3d 656 (7th Cir. 2018) .................................................................................... 20
STATUTES
18 U.S.C. § 922(g) .................................................................................................. 1, 4, 6
18 U.S.C. § 924(e)(1) ...................................................................................................... 4
18 U.S.C. § 924(e)(2)(B) ............................................................................................. 2, 4
18 U.S.C. § 924(e)(2)(B)(ii)........................................................................................... 20
18 U.S.C. § 3231 ............................................................................................................. 1
18 U.S.C. § 3742 ............................................................................................................. 1
28 U.S.C. § 1254(1) ........................................................................................................ 1
Ark. Stat. Ann. § 5-39-202(a) ...................................................................................... 17
Calif. Pen. Code Ann. § 459 ......................................................................................... 16
Fla. Stat. § 777.04(1).................................................................................................... 19
Fla. Stat. § 810.02(1).................................................................................................... 19
Iowa Code Ann. § 713.1 ............................................................................................... 17
N.C. Gen. Stat. § 14-54 .................................................................................................. 2
vii
N.C. Gen. Stat. § 14-54(a)........................................................................................ 6, 16
N.C. Gen. Stat. § 14-54(c) ........................................................................................ 6, 11
OTHER AUTHORITIES
N.C. Judicial Branch, Felony Case Activity Report FY 2018-2019 (2019) ................ 21
N.C. Judicial Branch, Felony Case Activity Report FY 2019-2020 (2020) ................ 21
IN THE
Supreme Court of the United States
SEDRIC RASHAD MARION,
Petitioner,
v.
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 Sedric Marion 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 unpublished opinion is reported at 821 F. App’x 264 and
produced at Pet. App. 1a.
JURISDICTION
The district court had jurisdiction over the criminal prosecution under 18 U.S.C.
§§ 922, 3231. Mr. Marion timely appealed the same day the district court entered
final judgment. The Fourth Circuit had jurisdiction under 18 U.S.C. § 3742 over
that timely appeal from a final order. The Fourth Circuit issued its opinion
affirming Mr. Marion’s sentence on September 18, 2020. 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
2
judgment. This petition is being timely filed on February 12, 2021. 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—
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another;
or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another
N.C. Gen. Stat. § 14-54 (2013) 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.
(a1) 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
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.
3
INTRODUCTION
North Carolina’s breaking or entering statute is categorically broader than
generic burglary in the Armed Career Criminal Act. 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 S. Ct. 2243 (2016), and Taylor v. 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 response to these cases, the Fourth Circuit, in United States v. Dodge,
recently re-affirmed its prior cases and held that North Carolina breaking or
entering is still an ACCA violent felony. 963 F.3d 379 (4th Cir. 2020). 1 The Fourth
Circuit in Dodge recognized a “tension” between its holding and this Court’s recent
cases, but it declined to overturn its earlier precedents without a “directly
applicable Supreme Court holding.” Id. at 384. The Fourth Circuit then relied on
Dodge to resolve Mr. Marion’s case in a short unpublished opinion.
Mr. Dodge has filed a petition for a writ of certiorari that is currently pending
before this Court (Sup. Ct. Doc. No. 20-6941).
1
4
This Court’s guidance is 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 are not violent felonies.
This Court should grant certiorari and reverse.
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).
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.” Id. § 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. Johnson v. 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.
5
133, 140 (2010), it is a violent felony only if it qualifies under the enumeratedoffense 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 “focus[es] 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. Descamps v. United States, 570 U.S. 254,
261 (2013). 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. Id.
This petition asks 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
6
circumstances where burglary is likely to present a serious risk of violence.” 139 S.
Ct. 399, 407 (2018).
North Carolina breaking or entering encompasses “break[ing] or enter[ing] any
building with the intent to commit any felony or larceny.” N.C. Gen. Stat. § 1454(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
The facts related to Mr. Marion’s conviction and sentencing are simple and
undisputed. In December, 2016, a grand jury sitting in the Eastern District of North
Carolina indicted him on one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). Mr. Marion pleaded guilty.
At sentencing, the parties disputed whether Mr. Marion was an Armed Career
Criminal. He contended that his prior convictions for North Carolina breaking or
entering were not “violent felonies” under ACCA. The district court overruled Mr.
Marion’s objection and sentenced him as an Armed Career Criminal.
The district court then sentenced him to the mandatory minimum fifteen-year
Armed Career Criminal sentence. Without the enhancement, Mr. Marion’s
statutory maximum sentence would have been ten years. Mr. Marion timely
appealed to the Fourth Circuit.
7
The Fourth Circuit, relying on its published decision in United States v. Dodge,
963 F.3d 379 (4th Cir. 2020), affirmed his sentence. Pet. App. 1a.
This petition follows.
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
When determining whether an offense qualifies as a burglary under the ACCA,
where that offense can take place matters. 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.” Stitt, 139 S. Ct. at 406 (quoting Taylor, 495 U.S. at 588). 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.” Id. at 403404, 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.
8
By entrenching its pre-Stitt and Mathis-precedent, 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—
includes breaking into structures and vehicles that house property and no people.
Its conclusion that Mathis and Stitt 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 Taylor to 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.
Burglary, for purposes of the ACCA, cannot be committed just anywhere. ACCA
burglary is “an unlawful or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime.” Taylor, 495 U.S. at 597 (emphasis
added). State burglary statutes are broader than this generic definition if they
include “places, such as automobiles and vending machines, other than buildings.”
Id. at 599. In Mathis, this Court noted that the Iowa burglary statute at issue
“cover[ed] more conduct than generic burglary does” because it “reache[d] 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.
9
In Stitt, this Court clarified that generic burglary’s locational element is not
limited to “building[s]” in the ordinary sense. Instead, Stitt held that generic
burglary also includes “burglary of a structure or vehicle that has been adapted or is
customarily used for overnight accommodation.” Stitt, 139 S. Ct. at 403-404.
Generic burglary encompasses certain vehicles, this Court reasoned, because
“break[ing] 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. Id. at 406. Stitt 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
10
possibility of a violent confrontation between the offender and an occupant,
caretaker, or some other person who comes to investigate.”).
Illustrating this focus on the risk of “violent confrontation,” the Court reaffirmed
that the Missouri statute at issue in Taylor was “beyond [ACCA’s] scope” 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, 139 S. Ct. at 407. The Court also reasserted
that the Iowa 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.” Id. 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 focus[ed] 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”).
11
Given this clear rule, the Fourth Circuit should have recognized that 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, 139 S. Ct. at 407 (noting
that the Missouri statute’s “use[] [of] the word ‘any’ ” rendered it broader than
generic burglary). And just like the Iowa 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
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”).
And the Fourth Circuit will not fix its error without this Court’s intervention. As
it held in Dodge, it will not change its view regarding North Carolina breaking or
12
entering without a “directly applicable Supreme Court holding.” 963 F.3d at 384.
Thus, further percolation will not resolve this problem. This Court’s review is the
only method to correct the Fourth Circuit’s misreading of Taylor, Mathis, and Stitt.
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, 139 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 “cover[ed]
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 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 “building[s] which [are] used, intended to be
used, or usually used by a person for habitation.” Id. 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 Stitt, 139 S. Ct. at 407). The habitation requirement
13
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 “break[ing] an entrance into, or enter[ing], or
remain[ing] 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.’ ” Id. 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 “cover[ed] an
expansive array of structures” nonetheless aligned with the generic definition of
burglary because the additional statutory requirement that a person either be
“present” or “likely to be present” in the burglarized structure “restrict[ed] the
statute's scope to only those structures that carry an increased risk of a violent
encounter between perpetrator and occupant.” Id. 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.” Id. at 776. It then noted that this proposition could be
explained in large part by Stitt’s focus on “circumstances where burglary is likely to
14
present a serious risk of violence.” Id. at 777 (quoting Stitt, 139 S. Ct. at 407). And
because it extended “only to habitations ‘in which at the time [of 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.” Id.
The Eighth Circuit reached a similar conclusion in United States v. Sims, 933
F.3d 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. Id. at 1013 (quoting Stitt, 139 S.
Ct. at 407-08). Relying on “Stitt’s 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
recognizes, a statute that prohibits breaking and entering into any vehicle does not
qualify as generic burglary.” Id. 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 “applie[d] only to vehicles in which someone lives or
15
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.” Id. 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 “cover[ed] more places than does the ‘building or structure’
definition of generic burglary.” Id. 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.” Id. 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.” Id. (quoting
Taylor, 495 U.S. at 588). And given this focus on the risk of violence, the parallels to
Stitt could not be clearer. See Stitt, 139 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 Stitt’s command by
considering whether an offense’s locational element “focus[es] upon circumstances
where burglary is likely to present a serious risk of violence.” Stitt, 139 S. Ct. at
16
407. The Fourth Circuit’s failure to do the same contravenes Stitt, Taylor, and
Mathis, and requires this Court’s intervention.
II.
THE FOURTH CIRCUIT’S DECISION CONTRAVENES TAYLOR 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. Thus, 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
17
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
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 § 5-39202(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
18
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
entering in terms strikingly similar to attempt, finding that when defendants
“opened the door[,] 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
“[t]ampering 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.
19
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
forth in Taylor v. United States.” James, 550 U.S. at 197 2. This was so because
Florida attempted burglary could be satisfied when a defendant committed an act
towards commission of burglary but fell short of “entering or remaining in a
structure or conveyance with the intent to commit an offense therein.” Id.; Fla. Stat.
§§ 810.02(1), 777.04(1); see James, 550 U.S. at 227 (Scalia, J., dissenting) (“the full
extent of the risk that burglary poses—the entry into the home that makes burglary
such a threat to the physical safety of its victim—is necessarily absent in attempted
burglary, however ‘attempt’ is defined”).
The Second, Fourth, Fifth, Seventh, Eighth, and Tenth Circuits, analyzing
attempted burglary statutes, have held that those statutes similarly do not qualify
as enumerated burglary. See United States v. Evans, 924 F.3d 21, 24 (2d Cir. 2019)
Although the Court ultimately held that the offense qualified as a violent
felony under the residual clause, that holding has necessarily been abrogated by
Johnson, 576 U.S. at 606.
2
20
(defendant’s New York attempted burglary had “qualified as a violent felony only
under ACCA’s voided residual clause”); United States v. Thomas, 2 F.3d 79, 80 (4th
Cir. 1993) (holding that New Jersey’s attempted burglary statute “does not contain
the elements required for ‘burglary’ as that term is used in 924(e)” and therefore
could not qualify as enumerated burglary); United States v. Martinez, 954 F.2d
1050, 1053 (5th Cir. 1992) (explaining that Texas’s attempted burglary statute
“does not require that the offender enter (or remain in) a building or structure” and
therefore cannot qualify as enumerated burglary); Van Cannon v. United States,
890 F.3d 656, 658 (7th Cir. 2018) (explaining that ‘[t]he Iowa attempted burglary
was a residual-clause offense and no longer counted toward Van Cannon’s ACCA
total” following Johnson); United States v. Smith, 645 F.3d 998, 1003 (8th Cir. 2011)
(Minnesota attempted burglary could only qualify as a violent felony under the
residual clause because “[a]ttempted burglary is not an enumerated offense”);
United States v. Strahl, 958 F.2d 980 (10th Cir. 1992) (holding that Utah’s
attempted burglary statute did not qualify as enumerated burglary because the
Tenth Circuit could “not conclude that Congress intended implicitly to include
attempted burglary as a violent offense when it specified burglary as a violent
felony under § 924(e)(2)(B)(ii)”).
Attempted burglary is not a qualifying violent felony under the ACCA. And
because North Carolina breaking or entering permits conviction for conduct
equivalent to generic attempted burglary, North Carolina breaking or entering also
cannot be a qualifying violent felony under the ACCA.
21
III.
THIS ISSUE IS IMPORTANT AND RECURS FREQUENTLY
The Fourth Circuit’s holding that North Carolina breaking or entering is a
categorical match for generic burglary and therefore a violent felony under the
ACCA is an important and recurring issue warranting this Court’s review.
North Carolina breaking or entering continues to be used to drastically enhance
prison sentences under the ACCA, despite being broader than generic burglary on
two grounds. This erroneous designation has ramifications well beyond Mr.
Marion’s case. Breaking or entering is the most common felony offense of conviction
in North Carolina. See N.C. Judicial Branch, Felony Case Activity Report FY 2019–
20 (2020). 3 Indeed, more than 4,300 cases involving a felony count of breaking or
entering were resolved by guilty pleas between July 2019 and June 2020, id., and
another 5,094 breaking or entering cases were resolved in the same manner the
prior year, see N.C. Judicial Branch, Felony Case Activity Report FY 2018–19
(2019). 4 Consequently, the Fourth Circuit’s disregard of this Court’s ACCA
precedents places tens of thousands of individuals with a North Carolina breaking
or entering conviction on their record one step closer to being deemed an armed
career criminal. And as the Fourth Circuit made a point of emphasizing in Dodge,
the risk that these same individuals will be subject to the ACCA’s drastic
sentencing enhancement is hardly speculative. See Dodge, 963 F.3d at 382-83
(citing at least fifteen recent opinions in which the Fourth Circuit has affirmed a
3
4
https://www.nccourts.gov/documents/publications/felony-case-activity-report.
https://www.nccourts.gov/documents/publications/felony-case-activity-report.
22
sentence under the ACCA involving North Carolina breaking or entering as a
qualifying predicate offense).
The Fourth Circuit’s failure to follow this Court’s precedents, and its departure
from the analysis of its sister circuits in the wake of those precedents, demands this
Court’s intervention to ensure that unlawful ACCA designations do not enhance the
sentences of those who are not armed career criminals.
IV.
THIS IS AN EXCELLENT VEHICLE TO DECIDE THE QUESTION
PRESENTED
This case presents an excellent vehicle for deciding the question presented. Mr.
Marion objected at sentencing to his Armed Career Criminal Designation, raising
the argument that North Carolina breaking or entering is not an ACCA violent
felony. Without these breaking or entering predicates, Mr. Marion would not be an
Armed Career Criminal. He fully briefed the issue to the Fourth Circuit, which
addressed it on the merits in its opinion.
Mr. Marion is serving a 180-month sentence, which is 60 months longer than his
non-ACCA statutory maximum sentence, so there is no argument that the Fourth
Circuit’s error is harmless. Finally, this case contains no ancillary jurisdictional
issues that would prevent this Court from reaching or resolving the question
presented.
V.
THIS COURT MAY WISH TO HOLD THIS PETITION FOR THE
RESOLUTION OF THE PETITION IN DODGE v. UNITED STATES
As noted, the Fourth Circuit rejected Mr. Marion’s argument by relying on its
recent published decision in United States v. Dodge. This Court is currently
23
considering a petition for certiorari in Dodge in Case Number 20-6941. If this Court
believes that the issue presented in this petition warrants review, it should consider
which petition presents a better vehicle for review.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be
granted.
Respectfully submitted,
G. ALAN DUBOIS
FEDERAL PUBLIC DEFENDER
EASTERN DISTRICT OF NORTH CAROLINA
/s/Eric J. Brignac
ERIC JOSEPH BRIGNAC
CHIEF APPELLATE ATTORNEY
Counsel of Record
EASTERN DISTRICT OF NORTH CAROLINA
150 Fayetteville St.
Suite 450
Raleigh, N.C. 27601
(919) 856-4236
eric_brignac@fd.org
FEBRUARY 12, 2021
Counsel for Petitioner
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.