# Opposition Brief — United States v. Stitt, 139 S. Ct. 38 (2018) (No. 17-765)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0799%3A03

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2018

## Text

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2017
CASE No. 17-765

UNITED STATES OF AMERICA,
Petitioner,

ON PETITION FOR WRIT OF CERTIORARI TO
THE SIXTH CIRCUIT COURT OF APPEALS

BRIEF IN OPPOSITION

STEPHEN NEWMAN
Federal Public Defender

TIMOTHY C. IVEY

Counsel of Record
CATHERINE ADINARO
Attorney at Law

Office of the Federal Public Defender
1660 W. 2™ Street, Suite 750
Cleveland, Ohio 44113
Phone: 216-522-4856
Facsimile: 216-522-4321
timothy _ivey@fd.org
cathi_adinaro@fd.org

Counsel for Respondent Victor Stitt

QUESTIONS PRESENTED FOR REVIEW
Whether burglary of a nonpermanent or mobile structure that is adapted

or used for overnight accommodation can qualify as “burglary” under the
Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(2)(B)Gi).

CORPORATE DISCLOSURE STATEMENT

Pursuant to this Court’s Rule 29.6, Respondent provides that he is an individual.

EE SID dcrntcrernccensennmeisneneasinideseumemnnnninnninnemeaensertanmnsmntienamennentapeemantats iii
a eciceieesceciticrisneenseerntcasnstenismaseanenasniideidaeinsiitusteeianennneanetnnnsanineannbinneemanntannaaviitins 1
SE EE ONIN chi ererenensnnanenevensenssnaseeunssensnemmninienatmnnannenennassnmunsenumnenesnnnnsieansaminthi 1
I I bessenincenresaninecnsenenenncannasentnnntecconuasnsnninneebennemnusenisininmeminmnsmatitiits I
Ey TIED WDE icinencnsenasnstensnidsennsdeneenemaniermeianenussanmiamanneniienenid 4
1. This Court has already defined generic burglary to exclude vehicles and
ST II senccassnsennaccnssessssesnsscsrserestenensmmummstmnnnsessnementenasensenszanasted 4
Il. | The question presented is not worthy of Supreme Court review .................... 6
Ill. There is no mature circuit split at this time ................:cccccecceeeeceneeeeeeeneeeeeneeeee 7
IV. This case is a poor vehicle to resolve the question presented ....................... 14
FI IIIIUD ctersnosennsevereensenssennsesessssescentesmnsstonnsisnsnsnseamnsnswatesmmmansncsensscassasanmeaiaaseit 16

TABLE OF AUTHORITIES

Federal Cases

Begay v. United States, 553 U.S. 137 (2008) .0........cccsccceceeeeeeeeceeeeeeesseesseeeseeeseeenenes 15
Descamps v. United States, 133 S. Ct. 2276 (2013) .....ccccccccccesceeeseeereeneeeenenes 9,11, 14
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ........cccccccccccceeeeeeeeneeeveececeeeeeneeeeees 5
Johnson v. United States, U.S. __, 135. S. Ct. 2551 (2015) oon cceeecceccccccceceeeeeeeeneee 1
Jones v. United States, 689 F.3d 621 (6th Cir. 2012) .......ccccccccceceeeeeeneeeesseeeeeeeeeneee 15
ey Oe ees PREY RES Ot CIID cetcontcccessisncnsecnnsnsasactiennennctsemnemetesesdninataininis 15
Mathis v. United States, US. _, 1368. Ct. 2243 (2016) 00... 2, 5,9, 14
Nijhawan v. Holder, 557 U.S. 29 (2009) .......cccccsscsesseeseeesesseeeeesseneseeseensensenees 5,9, 14
Shepard v. United States, 544 U.S. 13 (2005) ........cccccceeeeeeseeseeseeeeeeeeeeneennees passim
Smith v. United States, F.3d __,2017 WL 6350072 (7th Cir.

Giese Picenneercasinininnssantnccnensencincsnetonsatocsmnsasneptbeensnsmensconansansetens passim
Taylor v. United States, 495 U.S. 575 (1990) .......ccccccecceeesseeeseeeeseeseeeeneeneeenes passim
United States v. Bennett, 100 F.3d 1105 (31rd Cir. 1996).0.......0ccccccccceeceeseeeeeeeeeeneeeee 12
United States v. Cisneros, 826 F.3d 1190 (9th Cir. 2016). .........:ccccccceeeeeeeeeeeeeeeeeees 13
United States v. Coleman, 655 F .3d 480 (6th Cir. 2011), cert. denied,

Fe ee BR Ee rerrccscsunsssestonssenmmensanecseannencssecsantannesemmianitenienesensenesintnns 10
United States v. Grisel, 488 F 3d 844 (9th Cir. 2007) (en banc),

cert. denied, 552 U.S. 970 (2007).......ccseccecsessesseessesseseessenseeseeeseeseeneess 8,9, 13
United States v. Henriquez, 757 F 3d 144 (4th Cir. 2014) .2..0.0.ecccccceccceeeeeeeeeeeeeees 12

United States v. Herrold, 685 F . App’x 302 (Sth Cir. 2017), en banc

granted, 683 F. App’x 272 (July 7, 2017) ........cccccccesceeeeeeseeeeeeeeeeeeeeeeeseneeeees 9
United States v. Howard, 742 F.3d 1334 (1 1th Cir. 2014) 0.00. .ccccccccceeeeeeeeeeeeenenee 12
United States v. Lamb, 847 F .3d 928 (8th Cir. 2017) ...........ccccccccceceeeeeeeeeeeeeeeeeeeeeees 13
United States v. Lockett, 810 F.3d 1262 (11th Cir. 2016) ........cccccccccceeseeeeeeeeeeeeeeeee 12
United States v. Moncrief, 356 F. App’x 11 (9th Cir. 2009) .00..0...ccccceceeeeeeeeeeeeenee 13
United States v. Nance, 481 F .3d 882 (6th Cir. 2007)...........ccccccccccccceeeseeeneeeeseeneeees 10
United States v. Rainer, 616 F 3d 1212 (11th Cir. 2010), cert. denied,

SEE Cas COIS Cee Geely BIO OP ncenccscececncrnencccsensesenstnenemncnssesesseennscasceseeset 11,12
United States v. Scoville, 561 F 3d 1174 (10th Cir. 2009), cert. denied,

es Ee cscccscccncincscnscenensbiscessenssmnensencincconesssensennnssnmmscecceseel 8,9, 10
United States v. Silva, 957 F.2d 157 (Sth Cir. 1992) ......ccccccccesceeeeeeseeeeeeeeeeeeeeeneees 8,9
United States v. Sims, 854 F.3d 1037 (8th Cir. 2017) ........ccccccccceeeeeeseeeeeseeeeeeneeenen 12
United States v. Spring, 80 F.3d 1450 (10th Cir, 1996), cert denied,

I as Ca a ecenscseccenncintaasnstmcesnnsnaseeanessnentensensannenensensnsanesens 8,9, 10, 14
United States v. Stitt, 860 F.3d 854 (6th Cir. 2017)........cccccccseeeeeeeeeeseeeeeeeeeeneeeeeees 10
United States v. Sweeten, 933 F.2d 765 (9th Cir. 1991) .0.......ccccccccceeeeeceeeneeeeeeeeees 8,9
United States v. White, 836 F.3d 437 (4th Cir. 2016)...........ccccccccceeceeecececeeeeeeneeeeeees 12
State Cases
Commonwealth v. Hagan, 539 Pa. 609 (1995) .........ccccccccceeeeeeeseeeeeeeeeeseeeeereeseeeeeenees 12

State v. Adams, No. M1998-00468-CCA-R3-CD, 1999 WL 1179586
COR, CORE. FA TD, TER, Fa Pcccesencnccceccssenccssessescsnsnntetanccanacteccsncsusescensins 15

iV

State v. Anderson, No. E2014-0066 1-CCA-R3-CD, 2015 Tenn. Crim. App.
LEXIS 538 (Tenn. Crim. App. June 29, 2015), appeal denied,

2015 Tenn. LEXIS 993 (Tenn. Nov. 24, 2015)........sscsscsssssersseseessseeseeeeees 16
State v. Snipes, No. W2011-02161-CCA-R3-CD, 2013 WL 1557367

Re, SGN, RII IIIS. Waly, ANIUEE Dssricescnscinsdnssocesusescavonsuosatuinneniniaceinandniaieteieies 15
Federal Statutes
a ir SRI sien iincnincieinshciebinicinimnsatinainessbniisctlinicsmagiesnioiatacnusasintibaclpaeadnsniaianigieansibialatind l
a. OP II iinsticinsiinicisiesisesnictndnstinssicssasiasiiibeibinsnitinsssaaetaeedssaiasionnitincanmiitntanesipieniaiin I
as tr Se ITI ceriinsassiriocesinisrnisienininntniasesnsemenanincnaticspeiiiigiiciasiiioeesasiiiaianral 4
State Statutes
ee UN UD ND dicisccecnscececssationenessiisiniieliowstininiiinitsimenditesninieenamninntenn 11
eg Sn ET 1]
ky ee Ss: 0 Sr PED cnnensacensvesnsensonsensonsunsdiassininuvieiteiahniasieminipiveianianaie 13
SN Ue GRIER nxictsnseinsciortacenccsccntvaesnusentscnennectieniosunusnensanutnesuininnssinsisenesiinislitiiie 13
Sa ay NE: 0 GIT sn cirncscerininnenscesensnidniensienssidcueuieuniianaasanamimmananti 15
I nn INI Sa IIIT sl tetreiatnidaenhiecinnsinegiinnenenanintiedemoemninenistenessaucstaentiil 15
Tex. Penal Code Ann. §§ 30.01- 30.05 (1989 and Supp. 1990) ............ccccccceeeeeeeeees 7
Additional Citations
Ey NNN FU III SID cceccsccscessestcsusconsesessansssoveqsectomemmusimmneitiin 16

OPINIONS BELOW

The en banc opinion of the Sixth Circuit Court of Appeals is reported at 860
F.3d 854, and reproduced at Pet. App. la-55a. The panel opinion from the Sixth
Circuit Court of Appeals is found at 637 F. App’x 924 and reproduced at Pet. App.
56a-64a.

STATUTES INVOLVED
The relevant statutes are reproduced at Pet. App. 65a-80a.
STATEMENT OF THE CASE

Victor Stitt was convicted by jury of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 924(g). At sentencing, the district court found Mr. Stitt to
have at least three prior convictions which qualified as violent felonies under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Having been classified as
an ACCA, Mr. Stitt’s statutory penalty for his offense increased from a ten-year
maximum to a fifteen-year mandatory minimum term of incarceration. The district
court sentenced Mr. Stitt to 290 months in prison and Mr. Stitt appealed. (Cert. Pet.
App. at 57a-58a).

On appeal, Mr. Stitt argued that none of his prior convictions qualified as
violent felonies under the ACCA. The government conceded this Court's decision in
Johnson v. United States, U.S. _, 135 S. Ct. 2551 (2015), prohibited certain prior
offenses from being qualifying predicates. Therefore, the issue on appeal was limited
to whether Tennessee’s aggravated burglary statute qualified as a violent felony

under the ACCA statute. (Cert. Pet. App. at 62a). The Sixth Circuit, relying on its

own precedent, held Tennessee’s aggravated burglary statute is categorically a
violent felony under the ACCA’s enumerated-offense clause. (Cert. Pet. App. at 64a).

Mr. Stitt filed a motion for a rehearing en banc, arguing an inter-circuit
conflict. The Sixth Circuit had previously held Tennessee’s aggravated burglary
statute was categorically a violent felony but had “reached the opposite conclusion
about Ohio’s similarly worded burglary statute.” (Cert. Pet. App. at la-2a). The Sixth
Circuit granted Mr. Stitt’s motion for a rehearing to resolve this conflict.

The government initially conceded Tennessee’s aggravated burglary statute
covered more places than “buildings or structures.” It argued, however, that the
aggravated burglary statute was divisible and therefore the modified categorical
approach applied. While in the en banc briefing stage, this Court issued its decision
in Mathis v. United States, _ U.S. __,136 S. Ct. 2243 (2016). The government then
changed its position and argued Tennessee’s aggravated burglary statute is not
divisible but meets this Court’s definition of “building or structure” because the
vehicles and moveable enclosures are required to be adapted for overnight
accommodations. (Cert. Pet. App. at 5a, fn. 1).

The majority of the Sixth Circuit rejected the government’s position, finding
“the government's arguments * * * ignore the [Supreme] Court’s clear and
unambiguous language that ‘building or other structure’ excludes a// things mobile
or transitory.” (Cert. Pet. App. at 8a) (emphasis in original). “[T]he Supreme Court
has held fast to the distinction between vehicles and movable enclosures versus

buildings and structures in every single post- 7ay/or decision.” (Cert. Pet. App. at 6a).

“Thliis] Court’s adherence to this distinction over the course of nearly thirty years
persuadeld] [the Sixth Circuit] that the Court meant exactly what it said: vehicles
and moveable enclosures fall outside the scope of generic burglary.” (Cert. Pet. App.
at 6a-7a).

The dissent concluded Tennessee’s aggravated burglary statute fell within the
generic definition of burglary because its locations “match the traditional meaning of
‘dwelling” and that “7ay/or tells us that burglary of a dwelling is always generic.”
(Cert. Pet. App. at 46a-47a). The majority and both concurring opinions rejected the
dissent’s rationale and conclude that 7ay/or, and its progeny, require the conclusion
that Tennessee’s aggravated burglary statute is broader than generic burglary. (Cert.

Pet. App. at la-43a).

REASONS FOR DENYING THE WRIT

L. This Court has already defined generic burglary to exclude vehicles and
moveable enclosures.

This Court should deny certiorari in this case because it has already defined
generic burglary to exclude vehicles and moveable enclosures. Burglary under the
Armed Career Criminal Act (“ACCA”) was initially defined by statute. The ACCA of
1984 defined burglary as “any felony consisting of entering or remaining
surreptitiously within a building that is the property of another with intent to engage
in conduct constituting a Federal or State offense.” 7ay/or v. United States, 495 U.S.
575, 581 (1990) (quoting 18 U.S.C. § 1202(c)(9) (1984)). In 1986, the ACCA was
amended and the definition of burglary was deleted. Taylor, 495 at 582. In 1990, this
Court was called upon to define burglary as used in the ACCA. Taylor, 495 U.S. 575.

In constructing the definition, this Court reviewed the ACCA’s pre-1986
statutory definition of burglary, Congress’ changes to the ACCA statute, the
legislative history related to the 1986 amendment, and the “modern ‘generic’ view of
burglary in a majority of the States’ criminal codes at the time of the 1986
amendment.” 7ay/or, 495 at 582-590. This Court noted, “the deletion of the 1984
definition of burglary may have been an inadvertent casualty of a complex drafting
process.” Taylor, 495 at 589-590. Nonetheless, the Court held that Congress intended
the term burglary “in the generic sense,” and that the generic meaning “is practically
identical to the 1984 definition.” Taylor, 495 at 598.

After discussing the traditional common law definition, the Model Penal Code,

a prominent criminal law treatise, and various states’ criminal codes, this Court

4

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 at 592-599. The Court further held that burglary statutes that include
places other than buildings, “such as automobiles and vending machines,” are
broader than generic burglary. 7ay/or, 495 at 599.

Throughout the years since 7ay/or, this Court has maintained the exclusion of
vehicles and moveable enclosures from the definition of generic burglary. Mathis v.
United States, US. __, 136 S. Ct. 2243, 2250 (2016) (lowa’s burglary statute
“covers more conduct than generic burglary” because it “reaches a broader range of
places: ‘any building, structure, /or/ Jand, water, or air vehicle.” (alteration in
original) (citations omitted)); Nijhawan v. Holder, 557 U.S. 29, 35 (2009) (noting that
“breaking into a building” would qualify as generic burglary, but breaking into a
“vessel” would not); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-87 (2007) (noting
that Massachusetts defines burglary to include breaking into a vehicle, “which falls
outside the generic definition of ‘burglary,’ for a car is not a ‘building or structure”
(citations omitted)); Shepard v. United States, 544 U.S. 13, 15-16 (2005) (“The
[ACCA] makes burglary a violent felony only if committed in a building or enclosed
space (‘generic burglary’), not in a boat or motor vehicle.”).

The government argues that this Court must have meant to include vehicles
and moveable enclosures that have been adapted for overnight accommodations in its

definition of generic burglary because the “overwhelming majority of states included

vehicles and moveable enclosures in their burglary statutes.” (Cert. Pet. at 6). This
statement is misleading.
Il. The question presented is not worthy of Supreme Court review.

Assuming without conceding that the chart submitted by the government is an
accurate recounting of state burglary statutes at the time 7ay/or was decided, (Cert.
Pet. App. at 81a-97a), ruling in the government’s favor on the issue presented would
bring only a handful of states’ burglary statues within the definition of generic
burglary.

According to the government’s chart, forty-four states include vehicles and/or
moveable enclosures in their burglary statutes. However, the majority of those states
do not limit the inclusion of vehicles and/or moveable enclosures to ones that are
adapted for the overnight accommodation of persons. Nineteen states have burglary
statutes that include vehicles and/or other moveable enclosures without any use
limitation.' Of the remaining twenty-five states, most include vehicles and/or
moveable enclosures that have some other purposes, like carrying on a business,”

business transportation,® where people assemble for the purposes of business,‘ or are

' California, Connecticut, Delaware, Florida, Idaho, Kansas, Louisiana, Massachusetts, Nevada, New
Mexico, Oklahoma, South Dakota, Wisconsin, Wyoming

2 Alabama, Alaska, Arkansas, Colorado, lowa, Missouri, Montana, New Hampshire, New Jersey,
New York, North Dakota, Oregon, Pennsylvania, Utah, Washington

’ Arizona

4 Arkansas, Kentucky, lowa, Missouri, South Carolina

6

used to store, transport, or sell goods or merchandise.® In reality, only six states have
statutes that would be included in the government’s expanded definition of generic
burglary. Thus, the government's argument that this Court must have meant to
include vehicles and moveable enclosures that have been adapted for overnight
accommodations in its definition of generic burglary because the “overwhelming
majority of states included vehicles and moveable enclosures in their burglary
statutes,” is flawed. (Cert. Pet. at 6). The government’s argument fails to recognize
that the majority of states’ burglary statutes do not limit the inclusion of vehicles and
moveable structures to only those locations adapted for the overnight
accommodations of persons.

Notably, one of the state statutes that may be included in the proposed
expanded definition is Texas. Yet, this Court specifically reviewed Texas's burglary
statutes when it held vehicles were outside the definition of generic burglary. Taylor,
495 at 591 (citing Tex. Penal Code Ann. §§ 30.01-30.05 (1989 acd Supp. 1990)).
Because this Court has already defined generic burglary to exclude veuicles and
moveable enclosures, and has consistently maintained this definition throughout the
seventeen years since 7ay/or, certiorari should be denied.

Ill. There is no mature circuit split at this time.
Additionally, the government’s petition for certiorari in this case should be

denied because there is no mature circuit split on this issue.

5 lowa, Mississippi, South Carolina, Washington

6 Georgia, Hawaii, Maine, Minnesota, Texas, and Weat Virginia
7

In 1996, the Tenth Circuit held Texas’s burglary of a habitation statute
qualified as generic burglary. United States v. Spring, 80 F.3d 1450, 1461-62 (10th
Cir. 1996), cert. denied 519 U.S. 963 (1996). Texas, by statute, defined habitation as
“a structure or vehicle that is adapted for the overnight accommodation of persons.”
Id. at 1462. The Tenth Circuit held that because the statute only covered vehicles
adapted for the overnight accommodation of persons, it fell within this Court’s
definition of generic burglary as defined in 7ay/or. In reaching its conclusion, the
Tenth Circuit relied entirely on two cases: United States v. Silva, 957 F.2d 157 (5th
Cir. 1992), and United States v. Sweeten, 933 F.2d 765 (9th Cir. 1991). Sweeten is no
longer good law and Si/va has been called into question with the Fifth Circuit’s recent
grant of a rehearing en banc. Additionally, the Tenth Circuit’s Spring decision is
inconsistent with its decision in United States v. Scoville, 561 F.3d 1174 (10th Cir.
2009), cert. denied, 588 U.S. 888 (2009).

The Ninth Circuit overruled Sweeten in United States v. Grisel, 488 F.3d 844,
851, fn. 5 (9th Cir. 2007) (en banc), cert. denied, 552 U.S. 970 (2007). In Grisel, the
Ninth Circuit conducted a thorough review of this Court’s decision in Taylor and
recognized that “7ay/or jettisoned analyzing the use of an object in favor of analyzing
the nature of the object when it adopted an express definition of burglary that is
limited to the breaking and entering of building * * * .” /d Unlike in Sweeten, the
Ninth Circuit had the benefit of Shepard v. United States, 544 U.S. 13 (2005), when
it decided Grisel. |n Shepard, this Court reiterated that the Armed Career Criminal

Act “makes burglary a violent felony if committed in a building or enclosed space

(‘generic burglary’), not in a boat or motor vehicle.” Shepard, 544 U.S. at 15-16. Grisel
is the controlling law in the Ninth Circuit and is in line with the Sixth Circuit’s
decision in Stitt.

Additionally, the Fifth Circuit has recently granted a rehearing en banc in
United States v. Herrold, 685 F . App’x 302 (5th Cir. 2017), reh’g en banc granted, 693
F. App’x 272 Wuly 7, 2017). The issue presented for rehearing is whether Texas’s
burglary of a habitation is a generic burglary and a qualifying predicate for the
ACCA. (No. 14-11317, Splmt En Banc Brief Dkt. 00514109999). This is the same
Texas burglary statute at issue in Si/va, Spring, and Sweeten. Thus, the Fifth
Circuit’s decision to grant a rehearing en banc in Herrold raises the question of
whether Si/va remains good law.

Without Sweeten and Silva, the Tenth Circuit's decision in Spring is without
support. Spring was decided in 1996, prior to this Court’s decisions in Shepard,
Nijhawan, Duenas-Alvarez, Descamps, and Mathis. Moreover, Spring is in conflict
with another case from the Tenth Circuit. In 2009, the Tenth Circuit issued a decision
in United States v. Scoville, 561 F.3d 1174 (10th Cir. 2009), cert. denied, 588 U.S. 888
(2009). The court’s analysis in Scoville conflicts with Spring.

In Scoville, the Tenth Circuit held, “Taylor instructs that a statute that
includes structures ‘such as automobiles and vending machines, other than buildings’
is broader than generic burglary.” /d. at 1177. The issue presented in Scoville was
whether Ohio’s burglary statute was within the generic definition. Ohio burglary

included “houses, buildings, vehicles, and other structures that are occupied as a

dwelling or habitation, that are adapted for the overnight accommodation of persons,
or in which a person is present or likely to be present.” /d. at 1179. The Tenth Circuit
held Ohio’s third-degree burglary statute was broader than generic burglary as
defined in Taylor. Id. at 1179. Scovilleand Spring create an intra-circuit conflict, and
should be addressed by the Tenth Circuit.

The Sixth Circuit recently corrected an intra-circuit split on the same issue. In
Coleman, the Sixth Circuit held, “Ohio’s third-degree burglary statute sweeps more
broadly than generic burglary because it ‘includeles] places, such as automobiles and
vending machines, other than buildings.” United States v. Coleman, 655 F.3d 480,
482 (6th Cir. 2011), cert. denied, 565 U.S. 1129 (2012). Ohio’s third-degree burglary
covered locations “maintained as a permanent or temporary dwelling,” “occupied as
the permanent or temporary habitation of any person,” was “specially adapted for the
overnight accommodations of any person,” or where “any person is present or likely
to be present.” /d. at 482. The analysis in Coleman conflicted with the Sixth Circuit's
analysis of Tennessee’s aggravated burglary statute. See, e.g, United States v.
Nance, 481 F. 3d 882 (6th Cir. 2007). The Sixth Circuit accepted Stitt en banc to
correct this intra-circuit conflict. See United States v. Stitt, 860 F.3d at 854 (6th Cir.
2017). The Sixth Circuit now consistently holds that burglary statutes that include
vehicles and moveable enclosures are outside the definition of generic burglary, even
if the statutes require the various locations to be adapted for the overnight

accommodations. See Stitt, 860 F.3d 854 at 857-861.

10

Despite having numerous opportunities to do so, this Court has never reframed
the definition of generic burglary to look at the intended use of the location and the
majority of the Circuits have consistently followed suit. The Third, Fourth, Sixth,
Eighth, Ninth, and Eleventh Circuits hold that the “definitional focus is on the nature
of the property or place, not the nature of its use at the time of the crime.” United
States v. Rainer, 616 F.3d 1212, 1215 (11th Cir. 2010), cert. denied 562 U.S. 1161
(2011), abrogated by Descamps v. United States, 133 S. Ct. 2276 (2013).

In Rainer, the Eleventh Circuit held Alabama’s third-degree burglary statute
was broader than generic burglary. This burglary statute provided that: “lal person
commits the crime of burglary in the third degree if he knowingly enters or remains
unlawfully in a building with intent to commit a crime therein.” Rainer, 616 F.3d at
1214 (citing Ala.Code § 13A-7-7 (1979)). Alabama law defined “building” to include
vehicles, aircraft, or watercraft if those objects were used “for the lodging of persons
or carrying on business therein.” Rainer, 616 F.3d at 1215 (citing Ala.Code § 13A-7-
1(2) (1979)). The government argued, “that the definition’s conditional clause narrows
the burglary statute’s sweep to generic burglary.” /d. at 1215.

The Eleventh Circuit rejected this argument and held “[t]he conditional clause
does not limit the statute’s sweep to generic burglary.” /d. at 1215.

Even if used “for the lodging of persons or carrying on business
therein,” see Ala.Code § 13A-7-1(2) (1979), vehicles, aircraft, and
watercraft are not “buildingls] or structurels]” in the generic burglary
sense. See Taylor, 495 U.S. at 599-600; Shepard, 544 U.S. at 15-16. The

definitional focus is on the nature of the property or place, not on the
nature of its use at the time of the crime.

11

Rainer, 616 F.3d at 1215. See also United States v. Lockett, 810 F.3d 1262 (11th Cir.
2016) (holding South Carolina’s burglary of a “dwelling” is not generic burglary
because it covers boats and vehicles); United States v. Howard, 742 F.3d 1334, 1347-
1349 (11th Cir. 2014) (finding Alabama’s third degree burglary statute non-generic
and indivisible).

The Third Circuit has held that the inclusion of vehicles in a burglary statute,
even if the vehicles are adapted for the overnight accommodations or for business,
makes the statute broader than generic burglary. United States v. Bennett, 100 F.3d
1105, 1109 (3rd Cir. 1996). “The inclusion of ‘any vehicle’ in the statute demonstrates
that the legislature did not intend to limit this statute to buildings.” /d. (quoting
Commonwealth v. Hagan, 539 Pa. 609, 654 (1995)).

The Fourth Circuit rejected the government’s argument that Maryland's first-
degree burglary statute qualified as a generic burglary because it only included places
where a person resides and sleeps. United States v. Henriquez, 757 F.3d 144, 149
(4th Cir. 2014). The Fourth Court held that because “there is a realistic probability
that Maryland’s statute covers burglaries of motor vehicles or boats-places that the
United States Supreme Court has expressly excluded from generic burglary,” the
statute swept more broadly than generic burglary. /d. at 146. See also United States
v. White, 836 F.3d 437 (4th Cir. 2016) (West Virginia’s burglary of a dwelling house
is not generic burglary because it includes self-propelled motor homes.).

The Eighth Circuit has held that Arkansas’s burglary of a “residential

occupiable structure” is not a generic burglary. United States v. Sims, 854 F.3d 1037

12

(8th Cir. 2017). Under Arkansas state law, a “[rlesidential occupiable structure’
means a vehicle, building, or other structure: (i) liln which any person lives; or (ii)
[tlhat is customarily used for overnight accommodation of a person whether or not a
person is actually present.” /d. at 1039 (quoting Ark. Code Ann. § 5-39-101(4)(A)). See
also United States v. Lamb, 847 F.3d 928 (8th Cir. 2017) (holding Wisconsin’s
burglary of a motor home, whether or not someone was living in the motor home, is
broader than generic burglary).

The Ninth Circuit, sitting en banc, held that Oregon’s second-degree burglary
is broader than generic burglary because it covers non-buildings. Grise/, 488 F.3d at
850. “Under Oregon law, ‘[bluilding,’ in addition to its ordinary meaning, includes
any booth, vehicle, boat, aircraft or other structure adapted for overnight
accommodation of person or for carrying on business therein. Or.Rev.Stat. §
164.205(1) (emphasis added).” Grise/, 488 F.3d at 850 (internal citations omitted).
Oregon courts have held the term building includes “a semi-truck trailer being used
to collect charitable donations” and “a fishing vessel.” /d. at 850-851. “Trailers and
boats are not buildings in the ordinary sense of the word — they are not constructed
edifices intended for use in one place.” /d. at 851. The majority of the Ninth Circuit
rejected the argument that non-buildings adapted for the overnight accommodation
of persons qualifies as generic burglary. /d. at 851, fn. 5. See also United States v.
Cisneros, 826 F.3d 1190 (9th Cir. 2016). The Ninth Circuit has also held that
Tennessee’s aggravated burglary statute is broader than generic burglary. United

States v. Moncrief, 356 F. App’x 11 (9th Cir. 2009).

13

Besides Spring, the only other case to hold generic burglary includes vehicles
and moveable enclosures is Smith v. United States, _ F .3d__, 2017 WL. 6350072 (7th
Cir. Dec. 13, 2017).7 Smith is the only case post- Shepard, Nijhawan, Duenas-Alvarez,
Descamps, and Mathis, to conclude this Court must have intended to include mobile
locations in the definition of generic burglary. To reach its conclusion in Smith, the
Seventh Circuit pane! relies entirely on Spring and Judge Sutton’s dissent in Stitt.
Smith concludes this Court in 7ay/or, and all of its subsequent cases, did not mean
what it said when it specifically excluded vehicles and moveable enclosures from
generic burglary. The court in Smith held that this Court “did not grapple with all
enclosed spaces that people may call home,” therefore, the Seventh Circuit felt free
to construct its own definition. Smith, 2017 WL 6350072, at *4.

IV. This case is a poor vehicle to resolve the question presented.

Ew n if this Court were to conclude Smith creates a circuit split on this issue,
Stitt is not the case to resolve the issue.* Assuming for argument’s sake this Court
were to adopt the government’s expanded definition of generic burglary, Tennessee’s
aggravated burglary statute is still overbroad and cannot be an ACCA predicate.

Tennessee’s aggravated burglary statute cannot categorically qualify as a

violent felony under the ACCA because the conviction can be based on reckless

7 This case was decided after the government filed its petition for certiorari.
8 A petition for a writ of certiorari in Smith was filed on January 17, 2018. Supreme Court No. 17-

7517.

14

conduct. See Begay v. United States, 553 U.S. 137, 145 (2008) (negligent or reckless
conduct is not sufficient to qualify as a violent felony; the ACCA punishes purposeful,
violent and aggressive conduct). See also Leocal v. Ashcroft, 543 U.S. 1, 13 (2004)
(strict liability of DUI statute precludes statute from qualifying as a crime of
violence); Jones v. United States, 689 F.3d 621, 626 (6th Cir. 2012) (reckless conduct
does not qualify as an ACCA predicate).

“Aggravated burglary [in Tennessee] occurs when a person enters a habitation
without the effective consent of the property owner and commits or attempts to
commit a felony, theft, or assault.” State v. Adams, No. M1998-00468-CCA-R3-CD,
1999 WL 1179580, at *6 (Tenn. Crim. App. Dec. 15, 1999) (citing Tenn. Code. Ann. §§
39-14-402(a)(3)-403(a)). The statute does not require a mental state for entering the
habitation. State v. Snipes, No. W2011-02161-CCA-R3-CD, 2013 WL 1557367, *9
(Tenn. Crim. App. Apr. 12, 2013) (“burglary statute is silent regarding the required
mens rea”).

Under Tennessee law, “[wlhen a specific mental state is not given as an
element of an offense and is not plainly dispensed with in the offense, the [s]tate must
at least prove that the defendant acted recklessly.” Adams, 1999 WL 1179580, at *6.
Tenn. Code Ann. § 39-11-301(c) states that “[i]f the definition of an offense within this
title does not plainly dispense with a mental element, intent, knowledge or
recklessness suffices to establish the culpable mental state.”

Moreover, a review of Tennessee’s pattern jury instruction for aggravated

burglary, the statutes at issue, and the relevant case law, it is clear a mens rea is not

iS

an element that must be pled with specificity. See State v. Anderson, No. £2014-
0066 1-CCA-R3-CD, 2015 Tenn. Crim. App. LEXIS 538, at *55 (Tenn. Crim. App. June
29, 2015), appeal denied, 2015 Tenn. LEXIS 993 (Tenn., Nov. 24, 2015) (“The trial
court properly instructed the jury that the elements of aggravated burglary are: (1)
that the Defendant entered a habitation or any portion thereof; (2) that the Defendant
entered with the intent to commit a theft; (3) that the Defendant acted without the
effective consent of the owner: and (4) that the Defendant acted either intentionally,
knowingly, or recklessly.”). See also Tennessee's pattern jury instruction 14.02.
Because a conviction for aggravated burglary in Tennessee does not
categorically require purposeful or intentional conduct when entering the habitation,
it is not a qualifying predicate offense under the ACCA even if this Court were to
adopt the government’s expanded generic definition to include vehicles adapted for

overnight accommodations.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

denied.

Respectfully submitted,

STEPHEN NEWMAN
Federal Public Defender

4/ Timothy C. Ivey

TIMOTHY C. [VEY
Counsel of Record

16

/s/ Catherine Adinaro

CATHERINE ADINARO

Attorney at Law

Office of the Federal Public Defender
1660 W. 2nd Street, Suite 750
Cleveland, Ohio 44113

Phone: (216) 522-4856

Fax: (216) 522-4321

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0799%3A03. Public record. Not legal advice.