In the

Supreme Court of the United States

UNITED STATES,  PETITIONER

v.

VICTOR J. STITT, III,  RESPONDENT

&

JASON DANIEL SIMS, RESPONDENT

 

 

BRIEF OF RESPONDENTS

QUESTIONS PRESENTED

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.

 

INTRODUCTION  (STITT)

Almost 30 years ago, this Court looked at the congressional record to determine what Congress meant by "burglary" in the Armed Career Criminal Act. The legislative record showed that Congress' 1984 definition of burglary, which included only buildings, may have been inadvertently deleted during a complex amendment process. In any event, there was no evidence that Congress was dissatisfied with the 1984 definition, and there was no dispute among the members of Congress on the applicable definition. With the legislative record in mind, this Court has repeatedly excluded vehicles from the definition of burglary, and Congress has not modified the definition based on this Court's interpretation. The government now asks this Court to usurp the role of Congress and redefine burglary to incorporate mobile locations never before included. This Court should decline to do so and affirm the Sixth Circuit Court of Appeals,

INTRODUCTION (SIMS)

The Government fills its brief with talk about “mobile structures” and “mobile homes.” But this case is actually about whether the locational element of generic burglary encompasses two distinct types of vehicles: (1) those, such as recreational vehicles (“RV’s”) and campers, that are designed for only occasional overnight use; and (2) automobiles not even designed for such use but in which a person nevertheless happens to live. Arkansas’s residential burglary statute covers both of these types of motor vehicles, as well as their marine equivalents. This Court, however, has explained time and again that generic burglary excludes them.

STATEMENT OF THE CASE

A. Legal Background

In 1984, Congress enacted the Armed Career Criminal Act, increasing the penalty for a felon in possession of a firearm for defendants with three qualifying predicate offenses. One such qualifying offense is "burglary," which Congress defined as unlawfully entering or remaining in a building with the intent to commit a crime. In 1986, several amendments to the ACCA were made, and the definition of burglary was deleted.

In 1989, with no statutory definition of burglary remaining, this Court sought to determine what Congress meant by the term (Taylor v. United States). After extensive review of the legislative records, Taylor held that ACCA burglary "had the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor did not define "building or structure" but noted that the definition" is practically identical to the 1984 definition." The Court also noted statutes that extended beyond this definition by including other places, such as vehicles and vending machines. Throughout the years, this Court has held mobile locations do not fall within the definition of buildings and structures: burglary does not include boats or motor vehicles; generic burglary does not include vehicles; burglary of a vessel is not a generic burglary.

B. Factual and Procedural Background (Stitt)

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 that qualified as violent felonies under the ACCA , 18 U.S.C. § 924(e). Having been classified as an armed career criminal, 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.

On appeal, Mr. Stitt argued, in relevant part, 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 (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 "burglary" under the ACCA.

Tennessee aggravated burglary is burglary of a "habitation." Tennessee defines habitation by listing various means by which a person may satisfy the element of habitation, including structures and vehicles that are designed or adapted for the overnight accommodation of persons and places that are "appurtenant to or connected with" those structures or vehicles. Mr., Stitt's documents did not specify what type(s) of "habitation" were involved in his prior convictions for aggravated burglary. On direct appeal, the Sixth Circuit did not consider Tennessee's broad definition of habitation and, relying on its own precedent, held Tennessee's aggravated burglary statute categorically qualified as "burglary" under the ACCA.

Mr. Stitt filed a motion for rehearing en bane, arguing an intra-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." The Sixth Circuit granted Mr. Stitt's motion for 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 bane briefing stage, this Court issued its decision in Mathis v. 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 are required to be adapted for overnight accommodations.

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 all things mobile or transitory." The Supreme Court has held fast to the distinction between vehicles and movable enclosures versus buildings and structures in every single post-Taylor decision." The Court's adherence to this distinction over the course of nearly thirty years persuaded the Sixth Circuit that the Court meant exactly what it said: vehicles and moveable enclosures fall outside the scope of generic burglary."

The Sixth Circuit reversed the district court and remanded for resentencing without the ACCA classification.

B. Factual and Procedural Background (Sims)

1. Respondent Jason Daniel Sims pleaded guilty in the U.S. District Court for the Eastern District of Arkansas to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the Government argued that he should be sentenced under ACCA because he had four prior qualifying felony convictions. Respondent conceded he had two such convictions. But he contended his two prior convictions for Arkansas residential burglary did not constitute “burglary” under the ACCA. Under Ark. Code “a person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment.” A “residential occupiable structure” is defined, in turn, 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.” And “vehicle” is defined as “any craft or device designed for the transportation of a person or property across land or water or through the air.” The district court disagreed with Sims and found his Arkansas residential burglary convictions were ACCA predicate offenses. As a result, Sims’s advisory sentencing guidelines range was 188 to 235 months.” The court sentenced him to 210 months (17 and one-half years) imprisonment, followed by three years of supervised release.

2. The Eighth Circuit reversed. It observed that this Court has explained numerous times that the locational element of generic burglary does not extend to “boats or motor vehicles.”  Yet under Arkansas law, a person commits residential burglary if he enters certain types of boats or motor vehicles with intent to commit a crime. Accordingly, the court of appeals concluded that “Arkansas’ residential burglary categorically sweeps more broadly than generic burglary” under the ACCA. The Eighth Circuit denied the Government’s petition for rehearing en banc, and the case was remanded for resentencing.

SUMMARY OF THE ARGUMENT (STITT)

Congress enacted the Armed Career Criminal Act in 1984 and included a definition of burglary that covered only buildings. Congress inadvertently deleted the definition during a complex amendment process. With no definition of burglary remaining in the statute, this Court reviewed the legislative history to divine Congressional intent. This Court concluded Congress did not intend to change the definition of burglary from the one it mistakenly deleted. Nothing in the legislative history suggested Congress was dissatisfied with the 1984 definition, and the record reflected no dispute among members of Congress on the meaning of burglary. Based on Congress' intent, this Court defined burglary to include only buildings and structures.

After Taylor, Congress sought to recodify the missing definition of burglary multiple times. In every proposed legislation, the definition of burglary included only buildings. In the almost 30 years since Taylor, Congress never once proposed extending burglary to include mobile structures of any kind, regardless of whether they are adapted for overnight accommodations.

Taylor considered, but declined to adopt, a definition of burglary identical to the one now proposed by the government. Texas defined burglary of a habitation to include vehicles adapted for overnight accommodation of persons. The Penal Code defined burglary of an occupied structure to include vehicles adapted for overnight accommodation of persons. Despite these  examples, this Court did not define burglary to include habitations, occupied structures, or vehicles adapted for overnight accommodations. Instead, this Court in Taylor, consistent with Congress' 1984 definition, defined burglary to include only buildings and structures.

The majority of circuit courts have understood Taylor's definition to exclude vehicles, and the policy of stare decisis weighs heavily in support of maintaining this well-understood definition. Considerations of stare decisis have special force in the area of statutory interpretation. Congress' failure to modify this Court's interpretation in the nearly 30 years since Taylor enhances the special force of stare decisis in this case. Moreover, adopting the government's new definition of burglary would only add ambiguity and confusion where there was none. The government offers no definition of what makes a vehicle "adapted for overnight accommodations," and there is no clear consensus among the states on such a definition. The government's proposed definition does not satisfy the Fifth Amendment right to due process.

Even if this Court were to abandon its decades-old definition of burglary and adopt the government's new definition, Tennessee's aggravated burglary statute remains overbroad. Tennessee has defined habitation to include places "appurtenant to" buildings or vehicles. Extending burglary to places that are "appurtenant to" buildings and vehicles makes the statute overbroad.

This Court should hold the ACCA's sentencing enhancement structure violates defendants' Sixth Amendment rights by allowing a judge to make findings of fact that increase the statutory maximum penalty.

SUMMARY OF ARGUMENT (SIMS)

The locational element of the Arkansas residential burglary statute is broader than its generic counterpart in the ACCA for two independent reasons: (i) it encompasses vehicles designed for only occasional overnight use; and (ii) it covers any vehicle in which a person happens to live.

I.               In Taylor v. United States, and for nearly thirty years since, this Court has explained that the locational element of residential burglary covers “buildings” and “structures,” but not “vehicles.” The first prong of Arkansas’s residential burglary statute, however, applies to “vehicles” that are “customarily used for overnight accommodation.” This subsection covers not only mobile homes but also RV’s, campers, and boats with sleeping quarters. Regardless of whether the Government is correct that mobile homes can be regarded as “buildings” or “structures,” the latter collection of objects certainly cannot.

Treating RV’s, campers, and their vessel equivalents as outside the scope of generic burglary is also consistent with the purpose of the ACCA. The Act includes burglary among its list of “violent felonies” because it carries a high risk of violent confrontation. Yet, in contrast to homes and other primary residences, RV’s, campers, and boats with sleeping quarters are vacant the vast majority of the time. Consequently, entering such a vehicle without authorization is far less likely to result in any kind of personal confrontation.

The Government’s principal response is that this Court should redefine generic burglary from scratch. According to the Government, the empirical grounding and legal backdrop of Taylor actually establish that generic burglary should, in fact, cover vehicles that are “adapted for overnight accommodation.” This argument is irreconcilable with basic principles of stare decisis. While this Court is not beholden to every phrase or sentence in prior opinions, it is bound to give precedential effect to prior holdings. And the definition of burglary announced in Taylor constitutes the holding of the case. Furthermore, it is far from clear that the Government’s de novo contentions are valid even on their own terms. Especially under these circumstances, and given Congress’s longstanding acquiescence to Taylor, this Court should adhere to the definition of generic burglary it laid down in that case and has repeated several times since.

II.             Even if this Court were to grant the Government’s request to reinvent generic burglary from original source materials, the judgment below should still be affirmed. The second prong of the Arkansas residential burglary statute—unlike the Tennessee statute at issue in United States v. Stitt—covers any vehicle “in which any person lives.” This provision— which covers ordinary cars (for example, a Honda Civic or a Subaru Outback) in which a person happens to live—is unquestionably broader than the locational element of the generic crime.

Only nine states in 1986 had burglary statutes covering ordinary vehicles in which people lived; the vast majority of states defined burglary (as the other prong of Arkansas’s statute does) based on the nature or design of a vehicle. The Model Penal Code explicitly excludes ordinary motor vehicles in which someone lodges from its scope. Lastly, the ACCA’s purposes require excluding such locations from generic burglary. An individual entering an ordinary motor vehicle would not generally think it a place in which a person lives—and thus would not perceive any genuine risk of a violent altercation.

To be sure, there are no reported cases applying Arkansas’s residential burglary statute to an ordinary vehicle in which a person was living. But the fact that the Arkansas statute itself plainly covers such automobiles resolves the categorical approach inquiry. Defendants must produce case law demonstrating the overbreadth of a state law only when their arguments rely on something other than statutory text—say, a common-law principle or the prospect of a court putting a counterintuitive gloss on a provision. Any generally applicable requirement to prove a state law has been applied in a particular manner would pose serious practical and equitable problems. It would also contravene the Sixth Amendment concerns that motivate the categorical approach in the first place.

 

CONCLUSION

For the foregoing reasons, the Sixth Circuit Court of Appeal en bane opinion should be affirmed.