When a Vehicle Is a Home: Does a Burglary Qualify as Violent Felony Under the Armed Career Criminal Act if the Definition Includes Burglary of a Vehicle That Is Designed or Used for Overnight Accommodation?
When a Vehicle Is a Home: Does a Burglary Qualify as Violent Felony Under the Armed Career Criminal Act if the Definition Includes Burglary of a Vehicle That Is Designed or Used for Overnight Accommodation?
Respondents Victor Stitt, II, and Jason Sims were convicted in separate federal cases of possessing a firearm as a convicted felon. In each case, the district court sentenced respondent under the Armed Career Criminal Act (ACCA) because both respondents had been convicted of multiple burglaries under state law. Respondents appealed, and each court of appeals reversed, holding that burglary of a vehicle does not constitute a violent felony offense under the ACCA even if the state’s definition of burglary requires that the vehicle be designed or used for overnight accommodation. The government has appealed to the U.S. Supreme Court.
United States v. Stitt and United States v. Sims
Docket Nos. 17-765 and 17-766
Argument Date: October 9, 2018
From: The Sixth and Eighth Circuits
by Brooks Holland
Gonzaga University School of Law, Spokane, WA
Does burglary of a vehicle or other mobile structure qualify as a violent felony under the Armed Career Criminal Act (ACCA) if the definition of burglary requires that the mobile structure be designed or used for overnight accommodation?
Respondents were both convicted of the federal crime being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). In each case, the government sought a sentence under the ACCA, which requires a mandatory minimum of 15 years in prison for persons convicted of three or more prior serious drug offenses or violent felonies. See 18 U.S.C. § 924(e)(1). The ACCA identifies burglary as a violent felony offense, and respondents each had multiple convictions for burglary under state law.
Victor Stitt, II had been convicted of aggravated burglary in Tennessee, which criminalizes the unlawful entry of a “habitation.” Habitation includes: (1) “any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons”; (2) any “self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of the initial entry by the defendant”; or (3) “each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.”
Jason Sims was convicted of burglary in Arkansas. Arkansas defines burglary as unlawful entry into a “residential occupiable structure.” This type of structure includes “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 district court in each case decided that the burglary offense qualifies as a violent felony under the ACCA definition of burglary. The district court in Tennessee thus sentenced Stitt as an armed career criminal to 290 months in prison, and the district court in Arkansas sentenced Sims to 210 months. Respondents appealed.
The court of appeals reversed in each case, finding that the definitions of burglary under which respondents had been convicted do not qualify as violent felonies under the ACCA. See United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) and United States v. Sims, 854 F.3d 1037 (8th Cir. 2018). Both the Tennessee and Arkansas burglary statutes include vehicle burglary as satisfying the definition of burglary. The Supreme Court has previously held that the “generic” definition of burglary under the ACCA does not include burglary of vehicles and other mobile structures, only burglary of buildings and other structures. See Mathis v. United States, 136 S.Ct. 2243 (2016); Taylor v. United States, 495 U.S. 575 (1990). The government argued that the courts of appeals nevertheless should distinguish the Tennessee and Arkansas burglary statutes under which respondents were convicted, because the Tennessee and Arkansas statutes define burglary to require that the vehicle be designed or used for overnight accommodation, more like a residential building.
The appeals courts both rejected this argument as inconsistent with the Supreme Court’s generic definition of burglary under the ACCA. In the courts’ view, “[a]lthough the [Supreme] Court left ‘building or other structure’ undefined, it has confirmed repeatedly that vehicles and movable enclosures (for example, railroad cars, tents, and booths) fall outside of the definitional sweep of ‘building or other structure.’” Stitt, 860 F.3d at 857. Instead, the Supreme Court “emphasizes a place’s form and nature—not its intended use or purpose—when determining whether a burglary statute’s locational element is a ‘building or other structure.’” Id. at 858. The courts thus found that the Tennessee and Arkansas iterations of burglary do not constitute a violent felony under the ACCA. Therefore, the courts vacated respondents’ ACCA sentences.
The government petitioned the Supreme Court for a writ of certiorari in both cases. The Supreme Court granted the petitions on April 23, 2018, and consolidated the cases for review. See United States v. Stitt and Sims, 138 S.Ct. 1592 (2018).
The Supreme Court has spilled a lot of ink defining which state law crimes qualify under the ACCA to justify an ACCA sentence, including state law burglaries. This case will further refine which state law burglaries can trigger ACCA punishment.
This ACCA saga started in 1984 when Congress added the ACCA to the federal felon-in-possession firearm law, requiring a 15-year minimum sentence for firearm offenders who have been convicted of three or more prior robbery or burglary offenses. At that time, the ACCA defined burglary expressly: “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.” In 1986, Congress amended the ACCA to expand the predicate offenses from “robbery or burglary” to “violent felony or serious drug offense.” The 1986 version nevertheless expressly identifies burglary as a violent felony offense. Yet, Congress eliminated the definition of burglary it had included in 1984.
As a result, the Supreme Court had to construe the term burglary for an ACCA enhancement in Taylor v. United States, 495 U.S. 575 (1990). Adopting what the Court characterized as the “generic” definition of burglary “now used in the criminal codes of most states,” the Court held that burglary means “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 question in the current case is whether Tennessee and Arkansas’ burglary statutes satisfy this generic definition of burglary. The parties agree that in answering this question, the Supreme Court should apply the “categorical approach.” Under this approach, the Court looks solely to the statutory elements of the state burglary offense to determine whether the offense “substantially corresponds” to, or is narrower than, the generic definition of burglary covered in the ACCA. If the state burglary statute instead defines conduct as burglary more broadly than the generic definition, the burglary conviction does not qualify under the ACCA, regardless of the nature of the burglary in the defendant’s case. See generally Mathis.
Both the Tennessee and Arkansas burglary statutes include burglary of a vehicle in the definition of burglary. And in Taylor and subsequent decisions, the Supreme Court has indicated that the generic definition of burglary is limited to “buildings or structures,” and does not generally include vehicles and other mobile property, such as boats and tents. See also Mathis v. United States, 136 S.Ct. 2243 (2016); Nijhawan v. Holder, 557 U.S. 29 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007); Shepard v. United States, 544 U.S. 13 (2005). These authorities led the courts of appeals to reject respondents’ burglary convictions under the ACCA.
The government distinguishes these authorities, however, arguing that Taylor is consistent with its position, that the ACCA includes vehicles that are designed or used for overnight accommodation in the ACCA definition of burglary. Taylor, the government explains, sought to identify a generic definition of burglary that captured a consensus of the diverse definitions of burglary throughout the states. The government emphasizes that in 1986, the criminal codes of 43 states plus the District of Columbia “had at least one burglary statute that protected nonpermanent or mobile structures, such as vehicles, boats, and tents, adapted or used as dwellings, in addition to permanent residences and other buildings.” Consistent with this consensus, the government maintains, the ACCA should cover “the humble tenant in his tent as well as his more fortunate neighbor in his palace.”
The government adds that this consensus view is consistent with the legal authorities on which the Supreme Court relied in Taylor. The Court in Taylor noted that its generic definition of burglary approximated the definition adopted in the Model Penal Code (MPC). The MPC definition of burglary focuses on “occupied structures,” defined as “any structure, vehicle or place adapted for overnight accommodation of persons.” The government further describes a leading criminal law treatise that the Taylor Court references as reinforcing that many modern criminal statutes include vehicles adapted or used for overnight accommodation in the definition of burglary. In the government’s view, “Taylor’s endorsement of [these definitions of burglary] indicates that its similar generic definition of burglary under the ACCA likewise includes vehicles that serve as a person’s home.”
Respondents characterize these arguments as an unsupported extension of Taylor. The ACCA definition of burglary, respondents contend, has consistently excluded vehicles and other mobile property from the generic definition of burglary for 30 years. The Court’s exclusion of vehicles, respondents maintain, was not a sideshow to other holdings, but was itself a legal holding of those decisions, “entitled to stare decisis effect.” Reinforcing this point, respondents observe that “[t]he majority of circuit courts have understood Taylor’s definition to exclude vehicles.” The law’s commitment to stare decisis is strong in the context of criminal statutes like the ACCA, respondents add, where consistency and notice are important concerns.
Moreover, in respondents’ view, this reading of Taylor reflects Congressional intent. The 1984 version of the ACCA expressly defined burglary, and limited that definition to “buildings.” Respondents claim that Congress’ 1986 elimination of this express definition from the ACCA was likely inadvertent during the amendment process. Taylor thus concluded that Congress did not intend to change the meaning of burglary with the 1986 amendments. Accordingly, “[b]ased on Congress’ intent, [Taylor] defined burglary to include only buildings and structures.”
Thus, the fact that Taylor and subsequent decisions do not perfectly track the national profile of contemporary state burglary laws is of no moment. This fact also explains why the Supreme Court did not literally import the MPC or treatise definitions of burglary into the ACCA. In any event, respondents continue, these state and academic definitions of burglary do not present a consensus picture of the government’s position, as the government contends. Rather, many of these sources include vehicles in burglary definitions without limiting them to overnight use, an ACCA construction that Taylor and other decisions already have rejected.
The government counters, however, that its reading of Taylor is reinforced by two considerations. First, in Taylor, the Supreme Court rejected the position that burglary under the ACCA should be limited to the traditional common law definition. Instead, the Court framed the generic definition of burglary around the consensus view of the states when Congress enacted the ACCA. This rejection of traditional limiting constructions of burglary indicates that the Court intended the definition to be more consistent with modern, universalized understandings of this crime. This modern understanding includes vehicles that are designed or used for overnight accommodation.
Second, Congress’s purpose in enacting the ACCA supports this construction of burglary. Through the ACCA, Congress intended to impose enhanced punishment on the careers criminals who commit a large percentage of violent crime, including burglary. Respondents, the government asserts, artificially exclude burglaries from the ACCA’s scope that present the same or even greater risks of violence as residential burglaries. To the contrary, “Congress’ concerns about home invasions apply equally to the invasion of a mobile home as to the invasion of a colonial-style house.” These concerns are especially apt, the government observes, with “aggravated” burglary offenses of the sort of which Stitt was convicted in Tennessee.
Thus, the government concludes, the lower courts erred by reading the Supreme Court’s previous ACCA opinions too rigidly, like a legal statute rather than developing case law. “When this Court has stated that generic burglary cannot be committed in an automobile or vessel, it had before it burglary statutes that covered all such locations.” None of these cases, however, “arose in the context in which the Court was considering a burglary statute that covered vehicles only to the extent that they are inhabited or inhabitable.” This context, the government asserts, is covered by the ACCA’s generic definition of burglary.
Respondents counter that the government overplays the policy parallels between buildings and vehicles. First, respondents note the reduced risk of violence with vehicles because they are not used consistently for overnight purposes, at least outside of mobile homes. As Sims in particular emphasizes, “[m]obile homes are living units that are ‘used as permanent residences’ in a stationary manner.” Vehicles like RVs, campers, and boats, by contrast, are used much less often for overnight purposes. These vehicles thus fall far outside of any generic definition of burglary. And, under the categorical approach, the Tennessee and Arkansas statutes must satisfy the ACCA in all their elements, which include vehicles beyond mobile homes.
Second, if Taylor’s narrow construction of burglary under the ACCA was incorrect, Congress could have amended the ACCA to fix it. Congress, however, did not add a new definition of burglary during the 30 years since Taylor excluded vehicles from the ACCA and subsequent cases reinforced that construction. On the contrary, respondents point to several Congressional bills and amendments during this time proposing the same language from 1984. This record by Congress “implies Congressional acquiescence to [the Supreme] Court’s interpretation of the statutory term.”
Third, by not defining the concept “adapted for overnight accommodation,” the government proposed a “definition [that] is ambiguous and raises dues process concerns.” Indeed, respondents claim, the government seeks to “redefine generic burglary from scratch,” or perhaps reincarnate the unconstitutionally overbroad “residual” clause of the ACCA. See Johnson v. United States, 135 S.Ct. 2551 (2015). The Supreme Court, respondents argue, should avoid construing the ACCA in a manner that invites fresh ACCA litigation and colorable constitutional challenges.
Respondents, however, are not entirely in lockstep in challenging the government’s position. For example, respondents argue discrete contingencies if the Supreme Court adopts the government’s definition of burglary. Stitt argues that Tennessee’s burglary statute remains overbroad even under the government’s definition, because the Tennessee statute defines burglary to include locations “appurtenant to” a building or vehicle. Sims, in turn, highlights that Arkansas’ burglary statute extends beyond vehicles designed for overnight accommodation, like a mobile home, to any vehicle in which a person sleeps. “This provision,” Sims maintains, “is unquestionably broader than the locational element of the generic crime.”
Sims further invokes the doctrine of lenity. Under this doctrine, if the Supreme Court finds the interpretative question ambiguous, the rule of lenity demands that the Court adopt the narrower construction of burglary. The discretionary decision to expand criminal liability should rest with Congress, not the judiciary.
Respondents also drop a failsafe constitutional argument into their briefs. Respondents both suggest that if the ACCA includes these burglary offenses, the Supreme Court should overrule Almendarez-Torres v. United States, 523 U.S. 224 (1999). Almendarez-Torres authorized a judge, rather than a jury, to determine the facts necessary to establish a prior conviction. Respondents assert that a jury instead should have determined their prior burglary convictions, consistent with the Sixth Amendment jury trial right. Some justices have expressed receptivity to this argument, particularly Justice Clarence Thomas. But the question presented in Stitt-Sims does not include this constitutional issue.
This case will not likely rank among the Supreme Court’s blockbuster decisions this term. But the decision will be important to federal criminal practitioners and defendants. In one form or another, many states now define burglary to include burglary of a vehicle designed or used for overnight accommodation. If the Supreme Court brings these vehicle burglaries within the scope of the ACCA, many more defendants with these common criminal records will be exposed to the harsh punishment mandated by the ACCA. By contrast, if the Supreme Court continues to narrow the ACCA’s scope in defining burglary, fewer defendants with records for this crime may face the threat of an ACCA sentence.
The government also presses the policy significance of this decision to burglary victims. If the Supreme Court defines the ACCA narrowly, the government argues, so as to limit ACCA burglaries solely to burglaries of fixed buildings and structures, the ACCA will not equally protect individuals from the same threat of violence presented by burglaries of mobile homes, RVs, cars, and houseboats as burglaries of fixed residential dwellings. In an amicus brief, the National Association of Federal Defenders attempts to refute this concern by offering recent data indicating that residential burglaries rarely result in violence. Thus, “[w]hen the government repeatedly talks about the inherent dangerousness of residential burglaries, it waives a red herring that, in addition to being irrelevant, is insubstantial.”
Finally, this decision further could illuminate the dominant statutory interpretation methodology of the Supreme Court in the post-Scalia and post-Kennedy era. Justice Antonin Scalia in particular was known for his rigorous statutory interpretation methods. Although optically small in scale, a case like Stitt-Sims may give Justice Neil Gorsuch and the replacement justice to Justice Anthony Kennedy a notable opportunity to signal whether the Supreme Court may shift directions in this area, or hold course.
The Stitt-Sims case presents the Supreme Court with a narrow but important statutory interpretation question in the ongoing saga of ACCA litigation. Oral argument may better reveal whether the Court has continuing stamina for ACCA litigation, or whether the Court may opt for a narrow construction of burglary to help to close this book.
Brooks Holland is a Professor of Law and the Curran Chair in Legal Ethics & Professionalism at Gonzaga University School of Law. Professor Holland also practices criminal law in the U.S. Court of Appeals for the Ninth Circuit. He can be reached at email@example.com.
PREVIEW of United States Supreme Court Cases 46, no. 1 (October 1, 2018): 30–33. © 2018 American Bar Association
For Petitioner United States (Noel J. Francisco, Solicitor General, 202.514.2217)
For Respondent Jason Daniel Sims (Jeffrey L. Fisher, 650.724.7081)
For Respondent Victor Stitt, II (Timothy Carl Ivey, 216.522.4856)
National Association of Criminal Defense Lawyers (David John Debold, 202.955.8551)
National Association of Federal Defenders (Michael Clark Holley, 615.736.5047)