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Argument preview: What vehicle burglaries, if any, count for enhancing Armed Career Criminal Act sentences?

Like the question in the first Armed Career Criminal Act case to be argued on October 9 (Stokeling v. United States; see my preview), the question presented in the second case (United States v. Stitt, consolidated for argument with United States v. Sims) asks what the proper definition should be for a state-law crime that is a predicate for enhanced federal sentencing. However, rather than asking whether a specific state crime is “categorically” an ACCA predicate, Stitt asks whether a “generic” burglary under the federal statute should encompass moveable-vehicle burglaries, and if so, which ones.

As I noted in my preview of criminal cases granted for this term, Stitt, Sims and Stokeling focus on tricky “elements of the crime” questions that have been asked for decades in first-year Criminal Law classes. At common law, “burglary” was defined as breaking and entering the “dwelling house” of another with the intent to commit a felony inside. But long ago, most state legislatures expanded this definition, by statute, to encompass burglaries of any “structure,” not just homes. However, states have been more varied in determining whether “structure” includes a moveable vehicle, and if so, whether the crime of “burglary” should reach all vehicles or only those moveable structures that have been modified or routinely used for overnight sleeping. “Is it a car or is it a house?” has long been the joking tag-line for a 1984 Fourth Amendment mobile home case, California v. Carney. Stitt will now become a separate reference in that catalogue.

How the ACCA works

Before getting to the specifics of Stitt and Sims, one must understand how the federal sentencing statute known as the ACCA works. The ACCA, which is codified as Subsection (e) of 18 U.S.C. §924, imposes a 15-year mandatory-minimum imprisonment term on any federal firearms offender who also has three prior “serious” drug or “violent” felony convictions, including convictions under state law. So that federal courts can try to impose this tough penalty consistently, the ACCA provides a general definition of “violent felony” (which is at issue in the Stokeling case). But Congress also listed some specific crimes that meet the definition, and “burglary” is one of those. So if a federal firearms offender has three prior state-law convictions for “burglary,” then the language of the ACCA would apply.

But not so fast, my dear “plain language” statute reader. Although the initial 1984 ACCA statute contained a definition of burglary that specified the invasion of “a building,” that definition was removed in 1986. Without a statutory definition, the Supreme Court was compelled (as it now is in Stokeling, for “robbery”) to develop its own definition of “burglary.”  This is because, as Justice Harry Blackmun’s opinion noted in 1990’s Taylor v. United States, “the word ‘burglary’ has not been given a single accepted meaning by the state courts; the criminal codes of the States define burglary in many different ways.” Taylor determined that a “generic” definition of “burglary” should apply, because Congress intended that “some uniform definition” should govern the ACCA nationwide. The court then defined “burglary” as “any crime, regardless of its exact definition or label,” that involves invasion of “a building or structure” with intent to commit a crime. The parties now agree that the Taylor definition should apply whenever an ACCA offender has a prior conviction for “burglary” under state law.

Yet there is still not clarity, because states vary wildly as to what sort of “structure” qualifies for “burglary.” Many extend the crime to moveable structures such as a mobile home. But even if a “structure” can mean a vehicle, states also vary regarding whether the crime applies to all cars, or just to vehicles that serve as residential or “overnight accommodation” structures.

At this point, another ACCA twist is relevant: The generic definition must be one that “categorically” applies under a state’s criminal code or caselaw. That is, Taylor also decided that under the words of the ACCA, a federal court must look to “the elements of the statute of conviction, not to the facts of each defendant’s conduct.” Although at least two justices (Samuel Alito and Clarence Thomas) have criticized this “categorical” approach, it is the accepted precedent today, as the court once again recognized last term in Sessions v. Dimaya.

So now we come (finally) to Stitt and Sims specifically. Victor Stitt has been federally convicted of being a felon in possession of a firearm, and he qualifies for ACCA enhanced sentencing if his six prior convictions for burglary in Tennessee meet the generic definition under ACCA. Jason Sims, similarly a federally convicted felon-in-possession, will also receive an ACCA sentence if his prior burglary convictions, under Arkansas law, qualify. Because courts have disagreed on this question, the categorical approach now requires the Supreme Court to examine the burglary statute in each state.

Tennessee’s statute criminalizes burglary of any “habitation,” defined to include “any structure, including buildings, module units, mobile homes, trailers and tents, which is designed or adapted for the overnight accommodation of persons.” The court has previously ruled that if “the least of these” methods of violating a state statute does not meet the generic definition, then a conviction under the statute does not qualify categorically, no matter what the specific facts of the crime may have been. In Stitt, the U.S. Court of Appeals for the 6th Circuit split 9-6 en banc, finding that because the Tennessee statute reaches invasion of moveable vehicles, a Tennessee burglary conviction does not categorically meet Taylor’s “building or structure” requirement. That would mean that the 24-year sentence imposed on Stitt in the district court would likely be substantially reduced.

For Sims, the Arkansas burglary statute is slightly different than Tennessee’s. It similarly criminalizes burglary of an “occupiable structure,” defined to include “a vehicle, building or other structure in which any person lives or that is customarily used for overnight accommodation.” But whereas the Tennessee statute requires that a vehicle be “designed or adapted” for overnight sleeping, the Arkansas statute says “customarily used for.” This wording made no difference to the result below, however, and the U.S. Court of Appeals for the 8th Circuit ruled (with two dissents) just like the 6th: A state statute that encompasses vehicles cannot meet the generic “building or structure” definition set out in Taylor. So Sims’ 17-year ACCA sentence was also vacated.

The government’s petition for certiorari noted that other circuits had come to the opposite conclusion. More urgently, the government argued then, as it does now, that eliminating vehicle burglaries from the ACCA “all but erases the term ‘burglary’ from the ACCA text” and is a “sharp departure” from the approach taken in Taylor. The government argues that when the statute was written in 1986 (as well as today), most states included invasion of at least some mobile structures (such as mobile homes and RVs) in their definition of “burglary.” The government argues that Taylor and the ACCA must therefore reach at least those vehicle burglaries now. Otherwise the ACCA’s categorical approach will mean that most states’ burglary convictions will not count for prior ACCA convictions, and many repeat offenders will avoid the lengthy sentences Congress intended.

The U.S. solicitor general explains that Taylor expressly said that it intended to define ACCA burglary in the “sense in which the term is now used in the criminal code of most States.” The government then offers detailed citations to show that in 1986 most states – 43 plus the District of Columbia – included some “types of mobile or nonpermanent homes” in their burglary statutes. The government contends that even if “burglary” should not encompass all cars, a somewhat narrower generic definition like Tennessee’s – specifically, “burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation”  — should be adopted. The Taylor court’s use of the word “structure,” says the government, is “capacious enough” to include such “mobile dwellings.”

However, although the government repeatedly refers to mobile “dwellings” or vehicles that are “designed or adapted for overnight accommodations” as the Tennessee statute says, its proffered definition also would extend to vehicles “used for” overnight sleeping. Its brief does not discuss what “used for” should mean; the phrase is notably absent from the Model Penal Code definition, which the government quotes but does not dwell on. Both Stitt and Sims note that in decisions subsequent to Taylor, as well as in Taylor itself, the court has strongly suggested that ACCA “burglary” does not extend to “automobiles” or to “a boat or motor vehicle,” and that it includes “buildings and other structures, but not vehicles.” The government’s request for a generic definition that would encompass any vehicle “used” for overnight sleeping seems to go beyond these precedents, and the government’s reply brief does not appear to address this point head on. The defendants argue more broadly that because Taylor’s definition was limited to “building or structure,” it simply does not extend to vehicles of any kind.

The government asserts that the dangers and risk of violence from “home invasions” are as present, even more so, in burglaries of small and low-income residences, including modified moveable vehicles. The government maintains that the court ought not to endorse a distinction between “different types of homes.” To this point, the government’s reply brief includes an unusual visual argument in its text — side-by-side photos of two homes, one on wheels and one not, that appear otherwise identical — and asks why Congress would have “wanted to treat [them] differently solely because one has wheels.” Sims allows that burglary might extend to structures that are “fundamentally homes,” but that this honors the Taylor definition – otherwise the court should not depart from Taylor. Finally, the defendants invoke the “rule of lenity,” an interpretational maxim that directs courts, when confronted with criminal statutes that are truly ambiguous, to adopt the less severe construction.

Source: Reply of petitioner United States filed September 13, 2018


As noted in my preview for Stokeling, interpretive questions under the ACCA have plagued the Supreme Court for three decades, and inconsistency in application led the court to strike down another definitional section of the statute as unconstitutional in 2015. The Stitt and Sims cases seem to present a relatively straightforward question: Should the court interpret the statute and its own precedent to encompass some types of mobile homes, and if so, how should they draw the line? I didn’t see the court’s prior “car or house” decision cited in any brief – it was of course relevant to a different Fourth Amendment argument – but perhaps the court will find some line-drawing guidance there. However, I am more interested to see whether the October 9 arguments reveal more general signals of discontent with the ACCA. If Congress were listening – a big if these days – revisiting that statute might seem, post-argument, to be a necessary and worthwhile legislative task.

Recommended Citation: Rory Little, Argument preview: What vehicle burglaries, if any, count for enhancing Armed Career Criminal Act sentences?, SCOTUSblog (Oct. 2, 2018, 1:43 PM),