Petition for Writ of Certiorari — Bango Benjamin Enyinnaya, Petitioner v. United States

Supreme Court briefOct 14, 2022

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No. _______

IN THE

Supreme Court of the United States

BANGO BENJAMIN ENYINNAYA,

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

QUESTIONS PRESENTED

1. 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.

2. Whether North Carolina breaking or entering is categorically broader

than generic burglary because it does not have an “entry” requirement

and is thus categorically attempted burglary.

3. Whether, in light of the United States recently conceding that a jury

must find beyond a reasonable doubt that a defendant committed his

Armed Career Criminal Act prior convictions on “occasions different from

one another,” this Court should vacate the Fourth Circuit’s opinion and

remand to the Fourth Circuit to conduct a plain error review of this

question in the first instance.

ii

LIST OF ALL DIRECTLY RELATED PROCEEDINGS

United States Court of Appeals for the Fourth Circuit:

United States v. Enyinnaya, 2022 U.S. App. LEXIS 3602, 2022 WL 396020

(4th Cir. Case No. 18-4400, Feb. 9, 2022; Petition for en banc review denied

May 17, 2022).

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

United States v. Enyinnaya, No. 5:17-CR-55-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 ............................................................ 8

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 NOT PEOPLE......................... 8

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

precedents……………………………………………………………..9

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

federal courts of appeals analyze burglary offenses under the

ACCA post-Stitt……………………………………………………….13

iii

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………………………….17

III.

THIS ISSUE IS IMPORTANT AND RECURS FREQUENTLY………………22

IV.

IN THE ALTERNATIVE, THIS COURT MAY WISH TO SUMMARILY

REMAND THIS CASE FOR THE FOURTH CIRCUIT TO RECONSIDER IT

IN LIGHT OF WOODEN V. UNITED

STATES.………………………………………………………………………………..23

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

APPENDIX:

Opinion of the U.S. Court of Appeals for the Fourth Circuit .............................. 1a

Order Denying Petition for Rehearing En Banc ................................................... 4a

iv

TABLE OF AUTHORITIES

CASES

Commonwealth v. Cotto,

752 N.E.2d 768 (Mass. App. Ct. 2001) .................................................................... 19

Descamps v. United States,

570 U.S. 254 (2013) .............................................................................................. 6, 17

Greer v. United States,

938 F.3d 766 (6th Cir. 2019) ................................................................................ 14-15

James v. United States,

550 U.S. 192 (2007) ............................................................................................ 10, 20

Johnson v. United States,

559 U.S. 133 (2010) .................................................................................................... 5

Johnson v. United States,

576 U.S. 591 (2015) ........................................................................................ 5, 10, 20

Mathis v. United States,

136 S. Ct. 2243 (2016) .................................................................................. 3, 6, 9, 18

People v. Austin,

799 P.2d 408 (Colo. App. 1990) ................................................................................ 19

Quarles v. United States,

139 S. Ct. 1872 (2019) .............................................................................................. 10

State v. Batts,

617 S.E.2d 724 (N.C. Ct. App. 2005) ....................................................................... 12

State v. Bost,

286 S.E.2d 632 (N.C. Ct. App. 1982) ....................................................................... 12

State v. Ison,

744 P.2d 416 (Alaska Ct. App. 1987) ....................................................................... 19

State v. Jones,

157 S.E.2d 610 (N.C. 1967) (per curiam) ................................................................. 17

v

State v. Lucas,

758 S.E.2d 672 (N.C. Ct. App. 2014) ....................................................................... 18

State v. McCurdy,

487 P.2d 764 (Ariz. App. Ct. 1971) .......................................................................... 20

State v. Myrick,

291 S.E.2d 577 (N.C. 1982) ...................................................................................... 17

State v. Nichols,

150 S.E.2d 21 (N.C. 1996) ........................................................................................ 19

State v. Taylor,

428 S.E.2d 273 (N.C. Ct. App. 1993) ....................................................................... 12

State v. Watkins,

720 S.E.2d 844 (N.C. Ct. App. 2012) ....................................................................... 18

Taylor v. United States,

495 U.S. 575 (1990) .............................................................................. 3, 5-6, 9-10, 17

United States v. Dodge,

963 F.3d 379 (4th Cir. 2020) ................................................................... 3-4, 7, 13, 22

United States v. Evans,

924 F.3d 21 (2d Cir. 2019) ....................................................................................... 20

United States v. Jones,

951 F.3d 1138 (9th Cir. 2019) ............................................................................. 13-14

United States v. Livingston,

442 F.3d 1082 (8th Cir. 2006) .................................................................................. 19

United States v. Martinez,

954 F.2d 1050 (5th Cir. 1992) .................................................................................. 21

United States v. Montgomery,

974 F.3d 587 (5th Cir. 2020) .................................................................................... 16

United States v. Sims,

933 F.3d 1009 (8th Cir. 2019) .................................................................................. 15

United States v. Smith,

645 F.3d 998 (8th Cir. 2011) .................................................................................... 21

vi

United States v. Stitt,

139 S. Ct. 399 (2018) ..................................................................................... 3, 6, 9-17

United States v. Strahl,

958 F.2d 980 (10th Cir. 1992) .................................................................................. 21

United States v. Thomas,

2 F.3d 79 (4th Cir. 1993) .......................................................................................... 21

Van Cannon v. United States,

890 F.3d 656 (7th Cir. 2018) .................................................................................... 21

Wooden v. United States,

142 S. Ct. 1063 (2022) ........................................................................................... 4, 23

STATUTES

18 U.S.C. § 922 ............................................................................................................... 1

18 U.S.C. § 924(e)(1) ...................................................................................................... 5

18 U.S.C. § 924(e)(2)(B) ................................................................................................. 5

18 U.S.C. § 924(e)(2)(B)(ii)........................................................................................... 21

18 U.S.C. § 3231 ............................................................................................................. 1

18 U.S.C. § 3742 ............................................................................................................. 1

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

Ark. Stat. Ann. § 5-39-202(a) ...................................................................................... 18

Bipartisan Safter Communities Act,

Pub L. No. 117-159, 136 Stat. 1313 § 12004 .............................................................. 5

Calif. Pen. Code Ann. § 459 ......................................................................................... 17

Fla. Stat. § 777.04(1).................................................................................................... 20

Fla. Stat. § 810.02(1).................................................................................................... 20

Iowa Code Ann. § 713.1 ............................................................................................... 18

vii

N.C. Gen. Stat. § 14-54(a)........................................................................................ 6, 17

N.C. Gen. Stat. § 14-54(c) ........................................................................................ 6, 12

OTHER AUTHORITIES

N.C. Judicial Branch, Felony Case Activity Report FY 2018-2019 (2019) ................ 22

N.C. Judicial Branch, Felony Case Activity Report FY 2019-2020 (2020) ................ 22

Notice, United States v. Brown,

4th Cir. No. 21-4253, D.E. 31 ................................................................................ 23

Notice, United States v. Hadden,

4th Cir. No. 19-4151, D.E. 57 ................................................................................. 23

Sup. Ct. R. 10(c) ............................................................................................................. 8

IN THE

Supreme Court of the United States

BANGO BENJAMIN ENYINNAYA,

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 Banjo Enyinnaya 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 2022 U.S. App. LEXIS

3602 and 2022 WL 396020 and produced at Pet. App. 1a. The Fourth Circuit denied

a timely petition for rehearing en banc, which is produced at Pet. App.4a.

JURISDICTION

The district court had jurisdiction over the criminal prosecution under 18 U.S.C.

§§ 922, 3231. Mr. Enyinnaya timely appealed the district court’s 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. Enyinnaya’s

sentence on February 9, 2022. The Fourth Circuit denied a timely petition for

rehearing en banc on May 17, 2022. On August 8, 2022, the Chief Justice granted

2

Mr. Enyinnaya’s application to extend the deadline to file any petition for a writ of

certiorari until October 14, 2022. This petition is being timely filed on October 14,

2022. This Court’s jurisdiction rests on 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 924(e)(1) provides that the Armed Career Criminal Act sentence

enhancement applies to a person who, among other things, “has three previous

convictions . . . for a violent felony . . . committed on occasions different from one

another.”

18 U.S.C. § 924(e)(2)(B) 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 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.

3

(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.

INTRODUCTION

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

generic burglary in the Armed Career Criminal Act (“ACCA”). 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

4

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. Enyinnaya’s case in a short unpublished opinion.

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.

In the alternative, the United States has recently agreed in light of Wooden v.

United States, 142 S. Ct. 1063 (2022), that a jury—not a sentencing judge—must

find that a defendant committed his ACCA predicates “on occasions different from

one another.” This Court should vacate the Fourth Circuit’s opinion and remand for

that court to consider in the first instance whether the failure to follow that

procedure in Mr. Enyinnaya’s case was plain error.

STATEMENT

A. Statutory Background

ACCA 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

This Court rejected Mr. Dodge’s petition for a writ of certiorari (Sup. Ct. Doc. No.

20-6941).

1

5

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). 2

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.

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

Congress recently increased the statutory sentencing range for a non-ACCAenhanced violation of Section 922(g) from 0-10 years to 0-15 years. See Bipartisan

Safer Communities Act, Pub. L. No. 117-159, 136 Stat. 1313 at § 12004. Mr.

Enyinnaya committed his Section 922(g) offense when the range was still 0-10

years.

2

6

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

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).

7

B.

Facts and Procedural History

The facts related to Mr. Enyinnaya’s conviction and sentencing are simple and

undisputed. In February, 2017 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. Enyinnaya pleaded guilty. He did not admit that

he had three prior ACCA predicate convictions committed “on occasions different

from one another.”

At sentencing, the parties disputed whether Mr. Enyinnaya 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. Enyinnaya’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. Enyinnaya’s

statutory maximum sentence would have been ten years. Mr. Enyinnaya timely

appealed to the Fourth Circuit.

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. It then denied a

timely petition for rehearing en banc. Pet. App. 7a.

This petition follows.

8

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

NOT PEOPLE

This Court should grant review because the Fourth Circuit has decided an

important federal question in a way that conflicts with relevant decisions of thisw

Court. Sup. Ct. R. 10(c).

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.

9

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.

10

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

11

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,” this 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. This 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

12

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

violence”).

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”).

13

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

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,

14

951 F.3d at 1141 (quoting Stitt, 139 S. Ct. at 407). The habitation requirement

ensured that the statute solely encompassed structures in which the likely presence

of an occupant enhanced the “risk of violent confrontation.” Stitt, 139 S. Ct. at 406.

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

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

law defined in relevant part as “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

15

explained in large part by Stitt’s focus on “circumstances where burglary is likely to

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

16

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

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

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

when it passed the ACCA.” 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

17

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

18

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

19

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.

20

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 3. 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.

3

21

(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.

22

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.

Enyinnaya’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). 4 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). 5 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

4

5

https://www.nccourts.gov/documents/publications/felony-case-activity-report.

https://www.nccourts.gov/documents/publications/felony-case-activity-report.

23

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.

IN THE ALTERNATIVE, THIS COURT MAY WISH TO SUMMARILY

REMAND THIS CASE FOR THE FOURTH CIRCUIT TO RECONSIDER

IT IN LIGHT OF WOODEN V. UNITED STATES.

In Wooden v. United States, the petitioner asked this Court to resolve what

Congress meant by “occasions different from one another.” But Mr. Wooden “did not

raise” the more foundational question of who—the judge or the jury—gets to resolve

that question. Wooden, 142 S. Ct. at 1068 n. 3.

In light of Wooden, however, the United States has now taken a position on

that question. The United States has filed notices in two cases of which undersigned

counsel is aware in which it reversed its longstanding position on this issue and

states that

In the light of the “multi-factored” and “holistic” inquiry required by

Wooden, 142 S. Ct. at 1070–71, the Solicitor General has determined

that a jury must find, or a defendant must admit, that a defendant’s

predicates under the Armed Career Criminal Act were committed on

occasions different from one another.

Notice, United States v. Brown, 4th Cir. No. 21-4253, D.E. 31; see also Notice,

United States v. Hadden, 4th Cir. No. 19-4151, D.E. 57. The United States further

24

contends that any defendant requesting relief for this error must satisfy either plain

or harmless error review. Id.

Mr. Enyinnaya did not admit that his predicate convictions occurred on

occasions different from one another. And a jury did not find it. He also did not raise

this issue in the district court. Thus, in light of the United States’ position, this

Court should vacate the 4th Circuit’s opinion and summarily remand to the 4th

Circuit to consider in the first instance whether his ACCA sentence is plainly

erroneous on these grounds.

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

OCTOBER 14, 2022

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.

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