Sleeping Soundly—Even on Wheels

The federal Armed Career Criminal Act (ACCA) provides, among other things, that felons who are found in possession of a weapon will receive enhanced punishment if the felon has previously been convicted of burglary, arson, or extortion. The punishment for the offense of being a felon-in-possession is punishable by up to ten years’ incarceration, but if the defendant was previously convicted of one of the three identified offenses, the range of punishment is fifteen years to life.

The Supreme Court’s fall term will consider two cases that raise the question of what types of state burglary statute makes a defendant eligible for the enhancement under the Act. (United States v. Stitt and United States v. Sims). Specifically, these cases raise the question of whether burglary statutes that include movable vehicles adapted for habitation are so far outside the commonly understood definition of burglary as not to trigger the enhanced penalties.

While paradigmatic examples of burglary, arson, and extortion are easily identified, state statutes offer a range of definitions of these crimes. The ACCA does not, however, provide which definitions of these crimes it expects sentencing courts to use to determine whether a state conviction qualifies for the enhancement.

The Supreme Court has therefore concluded that defendants who are convicted under state statutes criminalizing the “generic” versions of these crimes are eligible for the enhancement. By “generic,” the Court has explained it means the “commonly understood” elements of the crimes of burglary, arson, and extortion.

Descamps v. United States, offers an easy example of a state statute that the Court concluded swept in conduct that is not part of the common understanding of burglary. The version of California’s burglary statute under which Descamps was previously convicted did not require the defendant’s entry into a building to be unlawful. Burglary at common law required that the defendant’s entry be unlicensed and removing this element of the crime dramatically increased the scope of the crime. As the Court observed in Descamps, this version of the crime transformed ordinary misdemeanor shoplifting into felonious burglary.

Likewise, the Court has concluded that state burglary statutes that criminalize entry into vehicles or vending machines exceed the definition of “generic” burglary. One can therefore find statements in a number of Supreme Court opinions concluding that state convictions under statutes that define burglary as entry into vehicles do not subject a defendant to the greater penalties under the ACCA.

Two years ago, the Supreme Court considered a case that will provide the defendants in the present cases one of their best arguments. In Mathis v. United States, the Court considered whether a defendant’s sentence could be enhanced under the ACCA if the specific facts of his prior crime would have amounted to a generic burglary. The Court concluded that the trial court that sentenced Mathis under the ACCA had improperly considered the indictment in his previous burglary cases to conclude that, under the facts of Mathis’ case, the prior conviction permitted the enhanced sentence.

The Court in Mathis did not elaborate on the Iowa burglary statutes under which the defendant had previously been convicted, but as the Sixth Circuit noted in its en banc decision, the Iowa burglary statute there at issue was substantively identical to the one in Stitt. The issue before the Court in Mathis was an evidentiary one – on what basis could a sentencing court find the defendant had been convicted of a generic burglary. Certainly though the trial court concluded that the Iowa burglary statute did not qualify as a generic burglary, requiring further evidence for the Court to conclude that the ACCA was applicable. In other words, the Supreme Court has not directly decided whether a conviction under a statute defining burglary to include a vehicle used as a dwelling qualifies a defendant for an enhancement under the ACCA. The Supreme Court in 2016 did, however, consider a case in which the parties all assumed that a conviction under such a statute would not permit such an enhancement.

But the Supreme Court’s basic test for whether a prior conviction for burglary, arson, or extortion qualifies under the ACCA must be reconsidered. The Court asks whether a state’s statute under which the defendant was previously convicted defined these crimes as they are “commonly understood.” The common law quite understandable made no mention of these issues – Winnebagos and doublewide trailers were unfamiliar to John Adams’ generation. The majority of the states, and the MPC, however, define burglary to include vehicles for overnight stays.

Perhaps more importantly, burglary statutes that include portable as well as stationary residences protect an individual’s security where he sleeps, an interest at the core of all burglary statutes. Differentiating burglaries of stationary and portable properties would further create different levels of protection based on means. Those who live in mobile homes seemingly desire would-be burglars to be deterred from entering their residences just as much as those who can afford to live in gated communities.

A formal approach – one that observes that burglary of vehicles occupied as dwellings expands the historic understanding of burglary – would lead the Court to conclude that burglary convictions obtained in most American states would not provide a basis for enhancing a defendant’s sentence under the ACCA. A functional approach – one that asks whether modern statutes protecting individuals sleeping in movable dwellings are analogous to the historic rationale for the long-existing crime of burglary – would give prosecutors many more opportunities to drastically elevate penalties for felons found in possession of weapons.

Wesley M. Oliver is an assoicate dean, director of the criminal justice program and professor of law at Duquesne University School of Law. Professor Oliver hosted a television program called Crime and Punishment on the Pennsylvania Cable Network and is a frequent commentator on criminal issues at a number of outlets.

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