Petition for Writ of Certiorari — Samuel Alex Gann, Petitioner v. United States

No. 20-_______

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

SAMUEL ALEX GANN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________________

JENNIFER NILES COFFIN

Assistant Federal Defender

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

QUESTION PRESENTED

An essential element of generic “burglary” is that the person formed the

specific intent to commit a crime at some point during the commission of the offense.

Taylor v. United States, 495 U.S. 575, 598 (1990); Quarles v. United States, 139 S. Ct.

1872, 1879 (2019). Tennessee, like a small handful of other states, has expanded its

definition of burglary to omit the element of specific intent. Under this expanded

definition, a person may be convicted of burglary when he or she trespasses in a

building with no intent to commit a crime and, while there, commits a reckless or

negligent crime, never having formed the specific intent to commit a crime at any

time. See Tenn. Code Ann. § 39-14-402(a)(3).

Is a burglary statute that omits the element of specific intent a generic

“burglary” for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)?

ii

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

(1) United States v. Gann, No. 3:19-cr-00165 / 3:18-cr-00088, District Court for the

Eastern District of Tennessee. Judgment entered November 1, 2019.

(2) United States v. Gann, No. 19-6287, U.S. Court of Appeals for the Sixth Circuit.

Order denying petition for rehearing en banc entered November 6, 2020.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ ii

PARTIES TO THE PROCEEDINGS ........................................................................... iii

RELATED CASES ........................................................................................................ iii

TABLE OF AUTHORITIES ......................................................................................... vi

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

JURISDICTION............................................................................................................. 2

STATUTORY PROVISIONS INVOLVED .................................................................... 3

STATEMENT OF THE CASE ....................................................................................... 3

REASONS FOR GRANTING THE PETITION ............................................................ 7

I.

The circuits are split on the question whether a burglary statute that omits the

element of specific intent qualifies as generic burglary. ..................................... 7

A. The Seventh Circuit correctly holds that a burglary statute that

dispenses with the intent element is not generic burglary. .......................... 8

B. The Fifth and Sixth Circuits are wrong that a trespass-plus-crime statute is

generic burglary. ........................................................................................... 12

II.

This case presents an excellent vehicle to resolve this important

question. .............................................................................................................. 17

CONCLUSION............................................................................................................. 17

APPENDIX

Sixth Circuit Order Affirming the District Court’s Judgment,

United States v. Gann, No. 19-6287 (6th Cir. Sept. 29, 2020) ............................... 1a

Sixth Circuit Order Denying Petition for Rehearing En Banc,

United States v. Gann, No. 19-6287 (6th Cir. Nov. 6 2020) .................................. 6a

Judgment, United States v. Gann, No. 3:19-CR-00165, No. 3:18-CR-00088,

(E.D. Tenn. Nov. 1, 2019) ........................................................................................ 7a

iv

State Burglary Statutes – 1986 ................................................................................ 14a

State Burglary Statutes – Current

Omitting Specific Intent ....................................................................................... 18a

v

TABLE OF AUTHORITIES

CASES

Brumbach v. United States,

929 F.3d 791 (6th Cir. 2019) ..................................................................................... 6

Chazen v. Marske,

938 F.3d 851 (7th Cir. 2019) ............................................................................... 6, 11

Descamps v. United States,

570 U.S. 254 (2013) ................................................................................................. 10

Harrell v. State,

593 S.W.2d 664 (Tenn. Crim. App. 1979) ........................................................ 13, 14

Quarles v. United States,

139 S. Ct. 1872 (2019) ........................................................................... ii, 3, 4, 10, 11

Rehaif v. United States,

139 S. Ct. 2191 (2019) ............................................................................................... 5

State v. Bradley,

No. M2017-00376-CCA-R3-CD,

2018 Tenn. Crim. App. LEXIS 102 (Tenn. Crim. App. Feb. 15, 2018) ................. 13

State v. Clark,

452 S.W.3d 268 (Tenn. 2014).................................................................................. 14

State v. Ivey,

No. E2017-02278-CCA-R3-CD,

2018 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Oct. 23, 2018) ............. 14-15

State v. Madkins,

989 S.W.2d 697 (Tenn. 1999).................................................................................. 13

State v. Welch,

595 S.W.3d 615 (Tenn. 2020).................................................................................. 14

Taylor v. United States,

495 U.S. 575 (1990) ................................................................................. ii, 3, 8, 9, 10

United States v. Bugh,

459 F. Supp. 3d 1184 (D. Minn. 2020) ................................................................... 12

United States v. Herrold,

941 F.3d 173 (5th Cir. 2019) (en banc)................................................................... 16

United States v. Isaacson,

No. 07-cr-320, 2020 U.S. Dist. LEXIS 209178 (D. Minn. Nov. 9, 2020) ............... 12

United States v. McArthur,

850 F.3d 925 (8th Cir. 2017) ................................................................................... 12

United States v. Morris,

812 F. App’x 341 (6th Cir. 2020) .............................................................................. 7

United States v. Nance,

481 F.3d 882 (6th Cir. 2007) ..................................................................................... 6

United States v. Pena,

952 F.3d 503 (4th Cir. 2020) ................................................................................... 17

vi

United States v. Raymond,

466 F. Supp. 3d 1008 (D. Minn. 2020) ............................................................. 11, 12

United States v. Sims,

No. 13-cr-109, 2020 U.S. Dist. LEXIS 230249 (D. Minn. Dec. 8, 2020) ................ 12

United States v. Stitt,

139 S. Ct. 399 (2018) ................................................................................................. 6

United States v. Wallace,

964 F.3d 386 (5th Cir. 2020) ................................................................................... 16

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) ........................................................................... 6, 8, 11

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

8 U.S.C. § 1101(a)(43)(G) ............................................................................................. 16

18 U.S.C. § 922(g) .......................................................................................................... 2

18 U.S.C. § 922(g)(1) .................................................................................................... 2, 5

18 U.S.C. § 924(e)............................................................................................... ii, 2, 3, 5

18 U.S.C. § 2113(a) ...................................................................................................... 10

28 U.S.C. § 1254(1) ........................................................................................................ 2

Cal. Penal Code § 459 .................................................................................................. 10

Minn. Stat. § 609.582(2)(a) .......................................................................................... 11

Mont. Code Ann. § 45-6-204(1)(b) ................................................................................. 8

Mont. Code Ann. § 45-6-204(2)(a)(ii) ............................................................................. 8

Tenn. Code Ann. § 39-13-101(a)(1) .............................................................................. 13

Tenn. Code Ann. § 39-13-212 ...................................................................................... 14

Tenn. Code Ann. § 39-14-401 ........................................................................................ 3

Tenn. Code Ann. § 39-14-402(a) ................................................................................... 2

Tenn. Code Ann. § 39-14-402(a)(3) .............................................................. ii, 4, 5, 8, 14

Tenn. Code Ann. § 39-14-403 ................................................................................ 13, 14

Tenn. Code Ann. § 39-14-403(a) .................................................................................... 3

Tex. Pen. Code § 30.02(a)(3) ....................................................................................... 16

OTHER AUTHORITIES

American Law Institute,

Model Penal Code § 221.1 (1980) ............................................................................. 9

4 William Blackstone,

Commentaries on the Laws of England (1769) ........................................................ 7

Jonathan Harwell,

Burglary at the Wal-Mart: Innovative Prosecutions of Banned Shoplifters Under

Tenn. Code Ann. § 39-14-402, 11 Tenn. J. L. & Pol’y 81 (2016) ........................... 13

2 Wayne R. LaFave & Austin W. Scott, Jr.,

Substantive Criminal Law § 8.13 (1986) ................................................................. 9

vii

1 Wayne R. LaFave,

Substantive Criminal Law § 5.2 (3d ed. 2017) .................................................. 9, 14

Tennessee Pattern Jury Instructions—

Criminal 14.02 (Aggravated burglary)................................................................... 15

viii

No. 20-_______

__________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________________________________

SAMUEL ALEX GANN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

__________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

__________________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________________________________

Petitioner Samuel Alex Gann respectfully petitions this Court for a writ of

certiorari to review the judgment of the United States Courts of Appeals for the Sixth

Circuit.

OPINIONS BELOW

The unpublished decision of the United States Court of Appeals for the Sixth

Circuit affirming the district court’s judgment appears at pages 1a to 5a of the

appendix to this petition and is available at 827 F. App’x 566 (6th Cir. 2020). The

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

denying rehearing en banc appears at page 6a of the appendix. The judgment of the

1

district court appears at pages 7a to 13a of the appendix.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). The court of appeals’

order affirming the conviction and sentence was entered on September 29, 2020. Pet.

App. 1a. The court denied rehearing en banc on November 6, 2020. Pet. App. 6a. This

petition is timely filed under Supreme Court Rule 13.1, as extended by Order of

March 19, 2020.

STATUTORY PROVISIONS INVOLVED1

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)(1) states:

In the case of a person who violates section 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1) of

this title for a violent felony or a serious drug offense, or both, committed

on occasions different from one another, such person shall be fined under

this title and imprisoned not less than fifteen years, and,

notwithstanding any other provision of law, the court shall not suspend

the sentence of, or grant a probationary sentence to, such person with

respect to the conviction under section 922(g).

Tenn. Code Ann. § 39-14-402(a) states:

(a) A person commits burglary who, without the effective consent of the

property owner:

1 Additional state statutes involved are set forth in the Appendix. See Pet. App. 14a-

18a.

2

(1) Enters a building other than a habitation (or any portion

thereof) not open to the public, with intent to commit a felony,

theft or assault;

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

or assault, in a building;

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

theft or assault; or

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

boat, airplane or other motor vehicle with intent to commit a

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

theft or assault.

Tenn. Code Ann. § 39-14-403(a) (aggravated burglary) states:

Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401

and 39-14-402.

STATEMENT OF THE CASE

Overview. In order for a person convicted of being a felon in possession of a

firearm to be sentenced to the 15-year mandatory minimum under the Armed Career

Criminal Act (“ACCA”), he must have at least three prior convictions for a “serious

drug offense” or “violent felony.” 18 U.S.C. § 924(e). Section 924(e) defines “violent

felony” to include “burglary,” which means generic burglary. Taylor v. United States,

495 U.S. 575 (1990). Generic burglary requires proof that the person formed the

specific intent to commit a crime. Id. at 598; Quarles v. United States, 139 S. Ct. 1872,

1879 (2019).

Tennessee defines one variant of burglary to omit the specific intent element.

This variant allows prosecutors to convict a person for burglary if he enters or

remains in a building with no intent to commit a crime and while inside commits a

reckless or negligent crime, never forming an intent to commit a crime at any time.

3

See Tenn. Code Ann. § 39-14-402(a)(3). This variant is uncommon, adopted by just a

handful of states and colloquially known as “trespass-plus-crime.” The question

presented here is whether Tennessee’s trespass-plus-crime offense is generic

burglary.

This Court’s narrow holding in Quarles, 139 S. Ct. at 1879, did not reach this

question or foreclose its answer, and the circuits are now split. Since Quarles, the

Seventh Circuit has held that a Minnesota burglary statute omitting the specific

intent element is not generic burglary. At least four district courts in the Eighth

Circuit have reached the same conclusion.

The Fifth and the Sixth Circuits, in contrast, hold that the trespass-plus-crime

statutes in Texas and Tennessee are generic burglary, and are firmly entrenched in

that view.

The Court should intervene to resolve the circuit split, and this case presents

an excellent vehicle for doing so. The question was preserved, cleanly presented, and

outcome-determinative. There is no dispute that Samuel Gann’s ACCA sentence

depends on his prior Tennessee convictions under Tenn. Code Ann. § 39-14-402(a)(3),

while Tennessee law is clear that this variant of burglary encompasses trespass plus

the commission of any theft or other felony, including one requiring only a reckless

or negligent mens rea. Without the ACCA enhancement, Mr. Gann’s advisory

guideline range would be just 30 to 37 months.

The question presented here is recurring, affecting many individuals in the

Fifth and Sixth Circuits subject to the ACCA’s severe penalty due to trespass-plus-

4

crime convictions. Meanwhile, trespass-plus-crime convictions are not counted as

ACCA predicates in other Circuits. Only this Court can resolve the circuit split on

this important question. The Court should grant the petition and reverse.

Background. Mr. Gann pled guilty in the Eastern District of Tennessee to a

single count of being a felon in possession of a firearm and ammunition, in violation

of 18 U.S.C. § 922(g)(1). Pet. App. 7a. He was classified as an armed career criminal

under the ACCA, 18 U.S.C. § 924(e), based on three prior Tennessee convictions for

aggravated burglary and one prior Tennessee conviction for burglary of a building.

Id. All three aggravated burglary convictions were for the trespass-plus-crime variant

of burglary defined at Tenn. Code Ann. § 39-14-402(a)(3), which requires proof only

that he “enter[ed] a [habitation] and commit[ed] or attempt[ed] to commit a felony,

theft, or assault.” Pet. App. 2a.2

Mr. Gann objected to the ACCA classification, arguing (among other things)

that Tennessee’s trespass-plus-crime variant of burglary, because it omits the specific

intent element, does not qualify as generic burglary for ACCA purposes, so is not a

predicate “violent felony.” Pet. App. 2a. The district court rejected the argument,

viewing itself bound by circuit precedent. Id. This determination triggered the

ACCA’s severe 15-year mandatory minimum and increased Mr. Gann’s guideline

2 See Collective Exhibit to Objection to PSR, Doc. 32-1 (filed in Case No. 3:18-cr-88).

There are two district court case numbers in this case because Mr. Gann initially pled

guilty in Case No 3:18-cr-88 to a one-count indictment charging him with being a

felon in possession of a firearm in violation of § 922(g)(1). After this Court decided

Rehaif v. United States, 139 S. Ct. 2191 (2019), he pled guilty to a one-count

information in Case No. 3:19-cr-165, and the government thereafter dismissed the

indictment in Case No. 3:18-cr-88. Pet. App. 7a.

5

range from 30 to 37 months to 180 to 210 months—a five-fold increase. Id. Mr. Gann

was sentenced to 180 months in prison, the mandatory minimum.

On appeal, Mr. Gann again pressed his challenge to Tennessee’s trespass-pluscrime variant of burglary. He showed that in 1986, when the ACCA was enacted, the

vast majority of state burglary statutes required proof of the specific intent to commit

a crime, reflecting burglary’s long history as a quintessential specific intent crime.

See Sixth Cir. App. Br. at 22-30; Reply Br. Add. And he showed that the vast majority

of state burglary statutes today still require proof of specific intent, identifying the

small handful of state burglary statutes that omit the specific intent to commit a

crime. Ibid. He urged the court to follow the Seventh Circuit’s lead in Van Cannon v.

United States, 890 F.3d 656 (7th Cir. 2018), in which that court held, and then later

reconfirmed in Chazen v. Marske, 938 F.3d 851, 860 (7th Cir. 2019), that Minnesota’s

version of trespass-plus-crime is not generic burglary because it omits the element of

specific intent.

A panel of the Sixth Circuit affirmed. The panel said that it was bound to reject

Mr. Gann’s challenge to Tennessee’s trespass-plus-crime variant under Brumbach v.

United States, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S. Ct. 974 (2020), in

which the court held that all Tennessee aggravated burglary offenses categorically

qualify as generic burglary under its broad holding in United States v. Nance, 481

F.3d 882 (6th Cir. 2007), which was resurrected by United States v. Stitt, 139 S. Ct.

399 (2018). See Brumbach, 929 F.3d at 794 (“Nance’s holding . . . is once again the

law of this circuit.”). The Sixth Circuit made clear that light of Brumbach, en banc

6

review would be the only way the court could review any challenge to the use of a

Tennessee aggravated burglary conviction as a “violent felony,” no matter how

meritorious. United States v. Morris, 812 F. App’x 341, 347 (6th Cir. 2020) (Moore, J.,

concurring) (“Until this court grants en banc review, we must follow Brumbach, no

matter how ‘weighty’ the underlying substantive issues or how thoughtfully the

issues are addressed.”).

Mr. Gann filed a petition for en banc review of the question whether

Tennessee’s trespass-plus-crime variant of burglary is generic burglary, but the Sixth

Circuit denied it. Pet. App. 7a. With the lower court now having directly ruled it

cannot consider this question by way of panel review, and with the full court having

made clear that it does not intend to revisit the question, review by this Court is the

only way to resolve the circuit split on this important question.

REASONS FOR GRANTING THE PETITION

I.

The circuits are split on the question whether a burglary statute that

omits the element of specific intent qualifies as generic burglary.

Burglary is the quintessential specific intent crime. Without the element of the

intent to commit a crime inside the building, it is nothing but a trespass. 4 William

Blackstone, Commentaries on the Laws of England 227 (1769) (“[I]t is clear, that [the]

breaking and entry must be with a felonious intent, otherwise it is only a trespass.”).

Tennessee has adopted a modern version of burglary that dispenses with the need to

prove a person’s specific intent to commit a crime, permitting instead conviction when

the person unlawfully enters or remains in the building and commits any felony,

theft, or assault—including those that are merely reckless, negligent, or strict

7

liability. Tenn. Code Ann. § 39-14-402(a)(3). This variant of burglary is known as

“trespass-plus-crime.” Van Cannon v. United States, 890 F.3d 656, 664 (7th Cir.

2018).

Four states today define burglary to include trespass-plus-crime—Michigan,

Minnesota, Tennessee, and Texas.3 In these states, prosecutors can convict a

defendant for burglary by proving that he committed a reckless, negligent, or strict

liability crime while trespassing. Pet. App. 18a. As the Seventh Circuit has rightly

held, these burglary offenses are broader than generic burglary because they lack the

element of “intent” to commit another crime inside the building. The Sixth Circuit, in

contrast, holds that Tennessee’s trespass-plus-crime variant of burglary is generic

burglary. The Fifth Circuit, too, holds that Texas’s identical trespass-plus-crime

variant of burglary is generic burglary.

A.

The Seventh Circuit correctly holds that a burglary statute

that dispenses with the intent element is not generic burglary.

“[T]he generic, contemporary meaning of burglary” is the crime as defined by

the majority of jurisdictions in 1986 when the ACCA was enacted in its current form.

Taylor v. United States, 495 U.S. 575, 598 (1990). Drawing from a contemporary

survey of the modern statutes, this Court has identified the generic meaning of

burglary as having three elements: “an unlawful or unprivileged entry into, or

3 Montana is a fourth state with a trespass-plus-crime offense, but it requires proof

that the person “knowingly or purposely commits any [] offense.” Mont. Code Ann.

§ 45-6-204(1)(b); id. § 45-6-204(2)(a)(ii). Michigan and North Carolina also have

statutes that appear on their face to dispense with intent to commit a crime. See Pet.

App. 18a.

8

remaining in, a building or other structure, with intent to commit a crime.” Id. (citing

2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(a), (c),

(e), at 466, 471, 474 (1986)).

The third element, “with intent to commit a crime,” corresponds to the common

law definition of burglary and its status as a quintessential specific intent crime.

Taylor, 495 U.S. at 580 n.3; see 1 Wayne R. LaFave, Substantive Criminal Law

§ 5.2(e) (3d ed. 2017). The difference between the common-law intent element and the

third element of generic burglary is that by 1986, modern statutes had expanded the

element to cover intent to commit any crime, not just intent to commit a felony.

LaFave & Scott, supra, § 8.13(e), at 474 (“[T]he prevailing view in the modern codes

is that an intent to commit any offense will do.”). As noted by this Court, the

prevailing usage also “approximates that adopted by the drafters of the Model Penal

Code”: “‘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.’” Taylor, 495 U.S. at 598 n.8 (quoting American Law Institute,

Model Penal Code § 221.1 (1980)).

By 1986 every state’s primary burglary statute required a specific intent (or

purpose) to commit a crime. See Pet. App. 14a-18a. Most states also had lesser degrees

of burglary, each likewise having an element of specific intent. Id. Two states, Texas

and North Carolina, had a single variant of a lesser degree of burglary missing the

element of specific intent. Pet. App. 16a, 17a. In all, there were 118 statutes across

9

all fifty states that required proof of the specific intent to commit a crime, as did

several federal burglary-type statutes. E.g., 18 U.S.C. § 2113(a) (defining bank

burglary as “enter[ing] or attempt[ing] to enter any bank . . . with intent to commit

in such bank . . . any felony affecting such bank”).

By overwhelming measure, a burglary statute lacking the element of specific

intent deviates sharply from the majority rule. Cf. Descamps v. United States, 570

U.S. 254, 259 (2013) (holding that Cal. Penal Code § 459 is not generic burglary

because it “does not require the entry to have been unlawful in the way most burglary

laws do”). And such a deviant statute reflects no “minor variation[] in terminology”

or “modest . . . deviation[]” from generic burglary. Quarles v. United States, 139 S. Ct.

1872, 1180 (2019). Rather, it creates an entirely different crime, equivalent to

eliminating “unlawful” from the entry element, or allowing conviction for

burglarizing a vending machine. Descamps, 570 U.S. at 259; Taylor, 495 U.S. at 599.

It “goes beyond the normal, ‘generic’ definition of burglary,” and is therefore not a

violent felony under the ACCA. Descamps, 570 U.S. at 259.

Quarles in no way undermines this conclusion. There, this Court rejected the

argument that remaining-in burglary requires proof that the person formed the

specific intent to commit a crime at the exact moment of the unlawful remaining in.

See Quarles, 139 U.S. at 1879. But the Court still presumed that the specific intent

must be formed at some point. Id.4 For this reason, both before and after Quarles, the

4 Quarles tried to raise the argument in the Supreme Court that the Michigan statute

actually has no element of intent at all, but the Court declined to address it because

Quarles “offer[ed] no support” for it and in any event had waived it. Id. at 1880 n.2.

10

Seventh Circuit has easily recognized that Minnesota’s trespass-plus-crime statute

is not generic burglary.

Minnesota’s burglary statute defines burglary to include when a person “enters

a building without consent and commits a crime while in the building.” Minn. Stat.

§ 609.582(2)(a). Before Quarles, the Seventh Circuit held that this statute does not

qualify as generic burglary because it “doesn’t require proof of intent to commit a

crime at all—not at any point during the offense conduct.” Van Cannon v. United

States, 890 F.3d 656, 664 (7th Cir. 2018). In reaching this conclusion, the court

rejected the government’s contention that the required intent to commit a crime is

implicit in the proof of a completed crime, reasoning that “not all crimes are

intentional; some require only recklessness or criminal negligence.” Id.

After Quarles, the Seventh Circuit confirmed that Van Cannon remains good

law. In Chazen v. Marske, 938 F.3d 851, 860 (7th Cir. 2019), the court held “with

confidence” that “Quarles did not abrogate Van Cannon’s conclusion that Minnesota

burglary is broader than generic burglary because the state statute does not require

proof of any intent at any point.” Id. at 860 (noting that this Court expressly declined

to address the question); id. at 865-66 (Barrett, J., concurring) (accepting without

question the continued correctness of Van Cannon after Quarles). And since then, at

least four district courts in the Eighth Circuit have independently considered the

question after Quarles and likewise concluded that Minnesota’s trespass-plus-crime

statute, because it requires no specific intent to commit a crime at all, is not generic

burglary. See United States v. Raymond, 466 F. Supp. 3d 1008, 1014-15 (D. Minn.

11

2020); United States v. Bugh, 459 F. Supp. 3d 1184, 1198-1200 (D. Minn. 2020);

United States v. Sims, No. 13-cr-109, 2020 U.S. Dist. LEXIS 230249, at *4 (D. Minn.

Dec. 8, 2020); United States v. Isaacson, No. 07-cr-320, 2020 U.S. Dist. LEXIS 209178,

at *5-6 (D. Minn. Nov. 9, 2020).5 As the district court in Bugh put it, Taylor’s

definition of generic burglary “clearly requires that the perpetrator act with the

highest level of culpability: purpose, or specific intent.” Bugh, 459 F. Supp. 3d at 1199

& n.26.

B.

The Fifth and Sixth Circuits are wrong that a trespass-pluscrime statute is generic burglary.

Like Minnesota, Tennessee is one of the handful of states that have adopted a

burglary statute dispensing on its face with the element of specific intent to commit

a crime in addition to the trespass. See Pet. App. 18a. In Tennessee, a person may be

convicted of aggravated burglary if, “without the effective consent of the property

owner,” he

(1)

Enters a . . . habitation (or any portion thereof) not open to

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

(2)

Remains concealed, with the intent to commit a felony,

theft or assault, in a [habitation];

5 Before Quarles, the Eighth Circuit had held that Minnesota’s comparable no-intent

statute was non-generic because conviction “does not require that the defendant have

formed the ‘intent to commit a crime’ at the time of the nonconsensual entry or

remaining in.” United States v. McArthur, 850 F.3d 925, 940 (8th Cir. 2017). These

courts recognize that while Quarles abrogated McArthur insofar as it determined

when the requisite intent may be formed for the purposes of committing generic

burglary, it did not consider the question whether Minnesota’s statute is non-generic

because it never requires the formation of the requisite intent at all. E.g., Raymond,

466 F. Supp. 3d at 1014.

12

(3)

Enters a [habitation] and commits or attempts to commit a

felony, theft or assault[.]

Tenn. Code Ann. § 39-14-402(a)(1)-(3), -403. As plain from the statute’s face, the

burglary offenses defined under subsections (a)(1) and (a)(2) are specific intent

crimes, while the (a)(3) variant is not. See Harrell v. State, 593 S.W.2d 664, 670 (Tenn.

Crim. App. 1979) (“When the elements of a crime include a defendant’s intent to

achieve some result additional to the act, the additional language distinguishes the

crime from those of general intent and makes it one requiring a specific intent.”

(internal quotation marks and citation omitted)). Rather, the (a)(3) variant “has

nothing to do with intent,” and its “failure to require felonious intent at some point”

is “a departure from historical antecedents.” Jonathan Harwell, Burglary at the WalMart: Innovative Prosecutions of Banned Shoplifters Under Tenn. Code Ann. § 39-14402, 11 Tenn. J. L. & Pol’y 81, 87-88 (2016).

The most obvious evidence of subsection (a)(3)’s deviant status is that it covers

unlawful entry plus commission of any form of assault, which in Tennessee can be

committed recklessly. Tenn. Code Ann. §§ 39-13-101(a)(1), -102(a)(1). Reading the

statute for what it says, a Tennessee court instructed a jury that it could convict a

defendant for aggravated burglary based on the theory that he entered an apartment

and committed reckless aggravated assault. See State v. Bradley, No. M2017-00376CCA-R3-CD, 2018 Tenn. Crim. App. LEXIS 102, at *20 (Tenn. Crim. App. Feb. 15,

2018). And by encompassing reckless assault, subsection (a)(3) logically precludes any

requirement of specific intent. State v. Madkins, 989 S.W.2d 697, 699 (Tenn. 1999)

(“It is illogical that someone could intend to cause [a result] through negligence or

13

even recklessness.”) (internal citation and quotation marks omitted)). “[O]ne cannot

intend to accomplish the unintended.” Id. (“[I]t does not make sense to say that a

defendant intended to kill the victim by being reckless.”).

Other realistic examples of offenses plainly covered by subsection (a)(3) are

statutory rape committed by acting recklessly about the age of the victim, State v.

Clark, 452 S.W.3d 268, 296-97 (Tenn. 2014), and criminally negligent conduct

resulting in death, see Tenn. Code Ann. § 39-13-212. While the person may have

entered without privilege and may have engaged in volitional acts leading to the

commission of the offense, there is no requirement that he ever formed a specific

intent to commit a crime. Harrell, 593 S.W.2d at 670; see also 1 Wayne R. LaFave,

Substantive Criminal Law § 5.2(e) (3d ed. 2017) (contrasting the specific intent

required for crimes such as burglary with general intent, the latter of which “is only

the intention to make the bodily movement which constitutes the act which the crime

requires).” Still, the person has “[e]nter[ed] a [habitation] and commit[ted] . . . a

felony.” Tenn. Code Ann. § 39-14-402(a)(3), -403.

If any question could possibly remain about what subsection (a)(3) means, the

Tennessee Supreme Court has emphatically confirmed that it means just what it

says. See State v. Welch, 595 S.W.3d 615, 619-20, 622-24 (Tenn. 2020) (holding that

its language “is clear and unambiguous on its face” and rejecting vagueness challenge

to the statute). It has always permitted prosecution and conviction for the conduct it

plainly prohibits. Indeed, in the litigation leading up to Welch, in State v. Ivey, No.

E2017-02278-CCA-R3-CD, 2018 Tenn. Crim. App. LEXIS 789 (Tenn. Crim. App. Oct.

14

23, 2018), the defendant argued he did not have adequate notice that (a)(3) applied

to his conduct (there, shoplifting after a no-trespass notice), because it had not

previously been used by prosecutors in that way. Id. at *3-7. The court rejected his

argument, reasoning that the language of the statute is not complex, but plain, and

nothing prevented such a prosecution under its terms. Id. at *20. The absence of

reported or unreported opinions, the court said, could not override its plain meaning

or narrow its stated scope, as there is no way to know what a prosecutor might fairly

pursue in the future or might have pursued in the past, and no way to know “if there

have been convictions for burglary based on facts similar to the facts in this case that

were never appealed.” Id. at *20 n.4.

Finally, the state’s pattern jury instructions confirm that subsection (a)(3)

require no proof of specific intent. They advise judges to instruct the jury, as an

element of the offense, that “the defendant acted either intentionally, knowingly, or

recklessly.” Tenn. Pattern Jury Instr.—Criminal 14.02, pt. C (Aggravated burglary).

In a footnote, the Pattern Jury Instruction Committee explains that “if Part C is

charged,” i.e., subsection (a)(3), “the element of entering with ‘intent’ is not required,

and there is no conflict with the definitions of ‘knowingly’ and ‘recklessly.’” Id. 14.02

n.4.6

The jury instructions do not explicitly mention the possibility that the crime

committed might have only a negligent mens rea, but they leave a space for setting

forth the elements of the underlying offense, so would necessarily allow for

prosecution of a negligent felony.

6

15

Reading the Tennessee statute for what it says, it plainly criminalizes burglary

premised on the commission of a trespass plus a reckless or negligent felony. Just as

with the Minnesota statute at issue in Van Cannon and Chazen, the commission of

the crime itself does not necessarily supply the proof of intent to commit a crime

required for generic burglary. Because the statute eliminates the element of specific

intent, it is not generic burglary. Yet under current Sixth Circuit precedent, it

qualifies as generic burglary, and the full court has declined to reconsider the matter.

The Fifth Circuit has reached the same incorrect conclusion about a Texas

statute that criminalizes a trespass-plus-crime variant of burglary. Like Tennessee,

Texas defines one variant of burglary as when a person “enters a building or

habitation and commits or attempts to commit a felony, theft, or an assault.” Tex.

Pen. Code § 30.02(a)(3). In United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en

banc), cert. denied, 2020 WL 5882400 (Oct. 5, 2020) (Herrold II), on remand from this

Court in light of Quarles, the en banc Fifth Circuit held “that Section 30.02(a)(3) is

generic.” Id. at 182. Any further challenge to the statute due to its lack of specific

intent is currently foreclosed. See United States v. Wallace, 964 F.3d 386, 390 (5th

Cir. 2020), cert. denied, S. Ct. No. 20-5588 (2020).

As it stands, the three Circuits in which this issue is most likely to arise—the

Fifth, Sixth, and Seventh—have spoken definitively, and they are split.7 The deadlock

is intractable and untenable, and this Court should step in to resolve it.

7 The Fourth Circuit recently acknowledged that it is an “interesting argument” that,

despite the Fifth Circuit’s holding in Herrold II, the Texas statute is not actually

generic burglary for purposes of 8 U.S.C. § 1101(a)(43)(G), but declined to address the

16

II.

This case presents an excellent vehicle to resolve this important

question.

This case presents an excellent vehicle to resolve this important question.

Samuel Gann’s ACCA sentence is predicated on three prior Tennessee convictions for

trespass-plus-crime. The ACCA designation catapulted his guideline range from an

advisory range of 30 to 37 months up to 180 to 210 months, and he was sentenced to

the mandatory minimum of 15 years. Mr. Gann challenged the use of these

convictions as predicate generic burglaries both in the district court and on appeal,

and both courts addressed the question on the merits. When the Sixth Circuit said it

could not reconsider the question except as the full court, he petitioned the full court

for rehearing, but was denied.

This issue will not resolve itself. The Court’s intervention is needed.

CONCLUSION

The petition for a writ of certiorari should be granted.

JENNIFER NILES COFFIN

Assistant Federal Defender

Federal Defender Services

of Eastern Tennessee, Inc.

800 South Gay Street, Suite 2400

Knoxville, Tennessee 37929

(865) 637-7979

matter because it was raised for the first time at oral argument. United States v.

Pena, 952 F.3d 503, 511 (4th Cir. 2020). Otherwise, because the North Carolina

statute, known as “breaking out of a dwelling house burglary,” Pet. App. 18a, lacks

both specific intent and the unlawful entry element of generic burglary, it is unlikely

to give rise to relevant litigation in the Fourth Circuit.

17