In the

Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

VICTOR J. STITT, RESPONDENT

&

JASON DANIEL SIMS, RESPONDENT

 

BRIEF FOR THE UNITED STATES

STATEMENT

Following a jury trial in the United States District Court for the Eastern District of Tennessee, respond­ent Stitt was convicted of possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1). He was sen­tenced to 290 months of imprisonment, to be followed by four years of supervised release. A panel of the court of appeals affirmed, but the en bane court vacated that decision and remanded for re­sentencing.

Following a guilty plea in the United States District Court for the Eastern District of Arkansas, respondent Sims was convicted of possession of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 210 months of imprisonment, to be followed by three years of supervised release. The court of appeals vacated the sentence and remanded for resentencing.

A. Legal Background

1. In 1984, concerned that a large percentage of crimes involving theft or violence" were committed by a very small percentage of repeat offenders, Congress supplemented state law-enforcement efforts by pro­viding enhanced penalties for certain persons pos­sessing firearms after three previous convictions for certain crimes. As origi­nally enacted, the Armed Career Criminal Act of 1984 (ACCA) prescribed a 15-year minimum sentence for any person convicted of possession of a firearm by a felon following three prior convictions for robbery or burglary.

Congress focused on burglary and robbery because of their frequency and connection to violence. The 1984 version of the ACCA de­fined burglary as "any felony consisting of entering or remaining surreptitiously within a building that is prop­erty of another with intent to engage in conduct consti­tuting a Federal or State offense. Congress singled out bur­glary because of its inherent potential for harm to persons.

In 1986, Congress amended the ACCA to expand the predicate offenses triggering the sentence enhance­ment from 'robbery or burglary' to a violent felony or serious drug offense. The amended version of the sta­tute, in effect today, defines a "violent felony" to in­clude any crime punishable by more than one year that "is burglary, arson, or extortion, or involves use of explosives." But while retaining "burglary" as a specifically listed ACCA predicate, Congress deleted the previous statu­tory definition of that term.

2. In Taylor this Court was "called upon to determine the meaning of the word 'burglary' as it is used" in the amended version of the ACCA. The Court held that "a person has been convicted of burglary for purposes of an ACCA enhancement if he is convicted of any crime, regardless of its exact def­inition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."

The Court in Taylor explained that its definition re­flects "the generic sense in which the term burglary is now used in the criminal codes of most States." The Court also explained that its definition of burglary "approximates" the one in the Model Penal Code, which, since 1980, has defined "burglary" as the unauthorized entry of a "building or occu­pied structure with purpose to commit a crime therein." The term "occupied structure" in the Model Penal Code encom­passes "any structure, vehicle or place adapted for over­night accommodation of persons, or for carrying on business therein, whether or not a person is actually present." The Court in Taylor also ref­erenced a leading criminal law treatise, which recog­nized that contemporary burglary statutes typically describe the place that is burglarized as a 'building' or 'structure'.

Taylor instructed courts to employ a "categorical ap­proach" to determine whether a prior conviction satis­fies its definition of "burglary." Under that approach, courts examine the statutory definition of the previous crime of conviction in order to determine whether it necessarily reflects conduct that constitutes the "generic" form of burglary referenced in the ACCA. If the definition in the statute of conviction sub­stantially corresponds to, or is narrower than, "ge­neric" burglary as defined in Taylor, the prior offense categorically qualifies as a predicate conviction under the ACCA.  But if the statute of conviction is broader than the ACCA definition, the defendant's prior conviction does not qualify as ACCA burglary un­less, under what is known as the "modified categorical approach," (1) the statute is "divisible" into multiple crimes with different elements, and (2) the government can show that the jury necessarily found, or the defendant necessarily admitted, the elements of generic burglary.

1. Offense conduct and initial proceedings (Stitt)

In 2011, during an argument with his girlfriend, re­spondent Stitt "tried to shove a loaded handgun into her mouth while threatening to kill her." A neighbor called the police, and Stitt fled to his mother's home. Law enforcement officers fol­lowed Stitt, who surrendered to the authorities after a brief foot chase. Detectives recov­ered a .22-caliber handgun lying on the ground within Stitt's reach.

A federal grand jury indicted Stitt on one count of possession of a firearm by a felon, In violation of 18 U.S.C. 922(g)(1), and a jury found him guilty of that crime. At sentencing, the dis­trict court determined that Stitt had nine prior state convictions that qualified as "violent felonies" under the ACCA, including six prior convictions for aggravated burglary under Tennessee Code Anno­tated 39-14-403(a) (1997). That statute criminalizes the burglary of any "habitation," defined as (A) "any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons"; (B) any "self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant"; and (C) "each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle." The district court applied the ACCA and sentenced Stitt to 290 months of impris­onment.

A panel of the court of appeals affirmed Stitt's ACCA sentence. The government acknowledged that this Court's decision in Johnson v. United States (2015) - which held a distinct portion of the ACCA's definition of "violent felony," known as the "residual clause," to be unconstitutional - "invalidated the violent-felony status of three of Stitt's prior offenses, leaving only his six Tennessee aggravated-burglary convictions at issue." Relying on circuit precedent, the court of appeals determined that a conviction under the Tennessee aggravated-burglary statute categorically qualifies as a conviction for generic burglary under the ACCA and that Stitt was therefore properly sentenced as an armed career criminal.

2. En bane proceedings

The court of appeals granted rehearing en banco. Over the dissent of six of the 15 judges who participated in the proceeding, the en bane majority overturned pri­or circuit law, concluded that the set of "habitations" covered by the Tennessee aggravated-burglary statute extends beyond the "buildings or other structures" covered by the majority's interpretation of generic bur­glary, and remanded for the imposition of a non-ACCA sentence.

a. The en bane majority concluded that no nonper­manent or mobile structure of any sort, including the structures adapted for habitation that are protected by the Tennessee aggravated-burglary statute, can fit within Taylor's reference to a "building or other struc­ture". The majority reasoned that "al­though the Court left 'building or other structure' un­defined" in Taylor, "it has confirmed repeatedly that vehicles and movable enclosures (e.g., railroad cars, tents, and booths) fall outside the definitional sweep" of that phrase. The majority discounted the particular habitation-related limitations of the Tennessee statute on the theory that Taylor's definition of generic burglary "emphasizes a place's form and nature-not its intended use or pur­pose."

The majority recognized that Taylor had described what Congress meant by 'burglary' in the ACCA as "the generic sense in which the term is now used in the criminal codes of most states." And the majority took note of a multijurisdictional analysis submitted by the gov­ernment for the purpose of illustrating that, when Tay­lor was decided, the "overwhelming majority of states included vehicles and movable enclosures in their bur­glary statutes" and that "a little more than half the states' burglary statutes specifically 'covered movable structures adapted for specific purposes such as over­night accommodation, business, or education.'" The majority also recognized that Taylor had lik­ened the ACCA definition of burglary to the Model Penal Code's definition, which included "occupied struc­tures" of the sort covered by the Tennessee law. But the majority nevertheless viewed Taylor's "clear and unambiguous language," and the Court's "repeti­tion of similar language in later cases," to "exclude all things mobile or transitory."

b. Five judges joined one or both of two concur­rences. Judge Boggs authored a concurrence disagreeing with certain points in the dissent, namely, that the ACCA def­inition of burglary is "broader" than the common-law def­inition, that the common-law definition applied to dwell­ings including vehicles adapted for overnight accommo­dation, and that burglary of a habitation "was a kind of burglary that the Taylor Court would have counted as a 'generic' ACCA burglary." Although Judge Boggs viewed the majority's result as "compelled by Taylor," he nonetheless acknowledged that the majority's holding would in conjunction with other ACCA decisions lead to "bizarre results."

Judge White joined Judge Boggs's concurrence and also filed a separate concurring opinion arguing, in response to the dissent, that common-law burglary did not protect tents and vehicles. Judge White acknowledged, however, that "whether Tennessee's aggravated-burglary offense and similarly­ defined offenses fall within Congress's concept of gen­eric burglary" is a "difficult" question with "persua­sive arguments on both sides." ("For me, the Model Penal Code's expansive definition of 'occupied structure' provides the strongest support for the dissent."). Like Judge Boggs, Judge White observed that the court of appeals' de­cision would lead to some puzzling results.

c. Judge Sutton, joined by five other judges, dis­sented. He reasoned that Ten­nessee's aggravated-burglary crime necessarily quali­fied as generic burglary, because generic burglary is broader than the common-law definition of burglary, and the locational element of common-law burglary en­compassed "dwellings"-including the sorts of habita­tions covered by the Tennessee law. Judge Sutton explained that the concurring opinions' contrary assertions erroneously looked to Blackstone ­era common law instead of the "common law in 1984, when Congress enacted the Armed Career Criminal Act." "By then," he observed, "the consen­sus of the state courts-the true authorities on Ameri­can common law-was that tents and vehicles designed and used for human accommodation count as dwell­ings."

Judge Sutton also observed that Tennessee's aggravated-burglary offense (1) mirrors the Model Penal Code's definition of "occupied structure," which Taylor cited in describing the elements of generic burglary; (2) matches the traditional meaning of "dwelling house" in Black's Law Dictionary; and (3) is consistent with federal cases holding that the term "burglary of a dwelling," as used in former Sentencing Guidelines, reached vehicles and tents designed for human habitation. Judge Sutton reasoned that be­cause "Taylor tells us that burglary of a dwelling is al­ways generic, and a uniform body of precedent tells us that Tennessee's definition of 'habitation' applies only to dwellings  the statute is generic  and Stitt's convictions under it qualify as violent felonies.

Judge Sutton criticized the majority for taking out of context statements by this Court that burglary statutes that "include places, such as automobiles and vending machines" cover more locations than generic burglary. He observed that those statements had not addressed stat­utes limited to the burglary of dwellings. And he admonished the majority for "isolating three words from Taylor, lifting them from their context, and in the process eliminating common law burglary of a dwelling, which Taylor tells us is the heart of the crime," from the scope of ACCA burglary.

Judge Sutton added that that the majority's conclu­sion "produces the head-scratching outcome" that "Ten­nessee's lesser crime of 'burglary of a building' qualifies as generic burglary while aggravated burglary"-i.e., burglary of a habitation-"does not." He also observed that, under the majority's view, a stat­ute that covers "burglary of unoccupied tool sheds" would constitute ACCA burglary, but a statute that "covers places where people regularly lodge" would not.

C. Proceedings In Sims

In January 2014, respondent Sims broke into a home in St. Francis County, Arkansas, and stole a rifle. A federal grand jury indicted Sims on one count of possession of a firearm by a felon, and Sims pleaded guilty to that crime.

At sentencing, the district court determined that, in addition to two prior convictions for "serious drug offenses" under the ACCA, Sims had two prior convictions for "violent felonies," ­specifically, two convictions for residential burglary under Arkansas Code. That statute criminalizes burglary of a "residential occupi­able structure," defined as "a vehicle, building or other structure: (i) In which any person lives; or (ii) That is customarily used for overnight accommo­dation of a person whether or not a person is actually present." The court applied the ACCA and sentenced Sims to 210 months of impri­sonment.

The court of appeals vacated Sims's sentence and re­manded for resentencing. As in the district court, Sims did not contest that his two prior drug offenses constituted "serious drug offenses" under the ACCA, but he argued that his Ar­kansas convictions for residential burglary did not qual­ify as "violent felonies." The court of ap­peals agreed with Sims, concluding that "Arkansas res­idential burglary categorically sweeps more broadly than generic burglary" because it covers vehicles used or adapted for overnight accommodation. In the court's view, no burglary statute encompassing ve­hicular burglary can qualify as "burglary" under the ACCA, even if the statute is limited to burglary of vehi­cles used as homes.

The court of appeals acknowledged that the govern­ment's position-that the Arkansas statute qualifies as generic burglary because it is limited to vehicles "'in which any person lives'" or "'that are customarily used for overnight accommodation"'-is "not an unrea­sonable one" and that "this issue has divided circuit courts." But the court stated that it was "not writing on a blank slate." Instead, the court deemed itself bound by its de­cision in United States v. Lamb, (8th Cir. 2017), which had stated that a Wisconsin statute "encompassed a broader range of conduct than generic burglary as de­fined in Taylor" because it covered "burglary of rail­road cars, ships, trucks, and motor homes." The court concluded that Lamb's reference to motor homes "foreclosed the Government's argument" that Arkansas residential burglary-which is narrower than the Wisconsin statute in many respects but likewise co­vers motor homes-categorically fits within the generic Taylor definition.

The court of appeals denied the government's peti­tion for rehearing en bane, over the dissent of two judges.

SUMMARY OF ARGUMENT

The courts of appeals erred in excising burglary of a nonpermanent or mobile structure that is used or adapted for overnight accommodation from the defini­tion of "burglary" under the ACCA. Their holdings are inconsistent with this Court's decision in Taylor v. United States; draw improper dis­tinctions between homes a burglar might target for in­vasion; and all but nullify a critical statutory term.

A. In Taylor, this Court construed "burglary" under the ACCA in "the generic sense in which the term is now used in the criminal codes of most States" to include "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." The "criminal codes of most States" in 1986-specifically, 43 States, plus the District of Columbia-had burglary laws protecting the types of mobile or nonpermanent homes at issue here. Taylor's definition of burglary thus necessarily reflects that overwhelming consensus.

Taylor, moreover, likened its definition of burglary to the Model Penal Code's, which since 1980 has encom­passed burglary of a "building or occupied structure," with "occupied structure" defined as "any structure, ve­hicle, or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present." Taylor also relied on Professor LaFave's treatise on the substantive criminal law, which emphasized the breadth of the terms "building" and "structure" in the burglary context and described the burglary statutes of 13 States that covered nonpermanent or mobile struc­tures adapted or used for overnight accommodation as "typical."

Taylor also emphasized that Congress, in enacting and expanding the ACCA, expressed specific concern with burglary's "inherent potential for harm to per­sons," which it recognized to be particularly acute in the context of a home invasion. The inher­ent danger of a home invasion exists to an equal, if not greater, degree when a burglar invades a mobile home as when he invades a mansion. Nothing suggests that Congress disagreed with the predominant view of the States that each homeowner deserves the protection of the burglary laws, or that Congress otherwise saw fit to differentiate between types of homes when it used the term "burglary" in its "generic sense."

Far from limiting "burglary" to only a subset of homes, Taylor deliberately adopted a definition of bur­glary that went well beyond the home invasions that were the "core" of traditional common-law burglary. As Judge Sutton recognized, Taylor's modernization of the locational element of bur­glary to include "any building or structure," rather than simply a "dwelling house," necessarily reflects a mod­ernization of the types of home invasions that have al­ways been at the "heart of the crime." Indeed, targeting of a home is frequently a factor that triggers the application of "aggravated-burglary statutes," which Taylor took as a given would qualify as "burglary" under the ACCA.

B. The Tennessee and Arkansas provisions at issue here are classic prohibitions against home invasions that are equivalent to or narrower than all but a small handful of state burglary statutes in existence in 1986. The courts of appeals' reasons for nonetheless exclud­ing them from the ACCA do not withstand scrutiny.

The courts below seized on Taylor's statement that "a few States' burglary statutes defined bur­glary more broadly, e.g., by including places, such as automobiles and vending machines, other than build­ings." But the Court's reference to "a few" burglary laws that cover "automobiles" cannot be construed to exclude the basic burglary statutes of the vast majority of States from a definition of "burglary" that was specifically based on the definition of burglary adopted by "most States". The majority in Stitt also read into Taylor's definition of burglary a fo­cus on "a place's form and nature" rather than "its in­tended use or purpose." Such a dis­tinction, however, not only lacks support in Taylor it­self, but also fails to recognize that form and function are inextricably intertwined, as when potential or actual human occupancy necessitates changes to layout or de­sign that relate directly to the danger of a burglary. Fi­nally, the majority in Stitt erroneously relied on the def­inition of "burglary" in the 1984 definition of the ACCA, which Congress deleted, to override the operative defi­nition of burglary that Taylor in fact provided. That broad state-consensus-based definition should not be construed to cover only a handful of state crimes.

CONCLUSION

The judgments of the court of appeals should be reversed and the cases remanded for further proceedings.