Argument preview: When must criminal intent be developed for an unlawful trespass to become a burglary?
on Apr 17, 2019 at 9:56 am
Next Wednesday, April 24, the Supreme Court will consider its third Armed Career Criminal Act case of the term, and the second case involving the elements of burglary. Indeed, Quarles v. United States sounds a bit like the previous burglary case, United States v. Stitt. In Stitt, the court opened October Term 2018 with arguments about whether a “generic burglary” for purposes of the ACCA encompasses vehicles as well as structures; eight weeks later they unanimously ruled that it does. Next week, the court will close its term by considering whether an ACCA burglary also encompasses an unauthorized presence in a structure when an intent to commit a crime inside is formed after the entry occurs (but while the burglar remains inside). Burglaries and the ACCA will therefore bookend this term.
Quarles presents a tricky question of mens rea (criminal intent) and statutory construction questions that are more difficult than they may initially appear. But first some background on the ACCA is necessary.
The current version of the ACCA was enacted in 1986. It imposes a 15-year mandatory-minimum sentence on any felon in possession of a firearm who also has three or more prior convictions for “violent felony” or “serious drug” crimes. The act defines “violent felony” to include “burglary,” which the statute does not further define. The Supreme Court has ruled that Congress intended that burglary must be defined in a “generic” sense that can be applied uniformly across jurisdictions, consistently with how “a majority of state burglary statutes” defined burglary in 1986. Thus, to determine if a prior burglary conviction counts as an ACCA burglary, federal courts must look to see how the specific state statute defines the crime, and whether that definition meets the “generic” ACCA definition.
The early common law defined burglars as persons who intended, at the time of an unlawful entry, to commit another crime inside. Over time, however, some state legislatures broadened the definition to include people who did not intend to commit another crime when they entered, but who developed such a criminal intent after a lawful entry became unlawful (Imagine a person who hides inside a store after entering lawfully, and then decides to rob it.). Thus in 1990 – yes, the Supreme Court has been struggling with the ACCA for 30 years – the court adopted in Taylor v. United States a more modern definition of burglary: An ACCA burglary must have “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” It is the “remaining in” prong of this definition that is at issue next week.
Jamar Quarles does not contest the Taylor definition. But he argues that “[t]he ‘remaining in’ prong … must refer to the initial moment when the privilege to be in lawfully entered premises ceases.” “Otherwise,” he argues, “the alternative ‘entry’ prong would be superfluous: For all practical purposes, every unlawful entry is immediately followed by unlawful ‘remaining in’ the illegally entered premises.” Because the entry prong refers to a “particular moment in time,” says Quarles, the “remaining in” prong is “most naturally read” as also referring to the initial moment when the person remains unlawfully. If a state statute permits conviction without requiring that criminal intent exist “at the moment of initial trespass,” Quarles argues, then a burglary conviction under that state statute cannot be an ACCA predicate. He argues (and two federal circuits as well as some state courts have opined) that neither Congress nor the Taylor court intended “unplanned crimes of opportunity [committed] while trespassing” to be subject to the ACCA’s mandatory 15-year sanction.
Quarles pled guilty to a federal felon-in-possession charge in 2015. He had two prior convictions for assault with a dangerous weapon (uncontestedly “violent felonies”) and a prior conviction in Michigan for “third degree home invasion.” The Michigan home-invasion statute adopts the normal elements of burglary, but also extends the crime to anyone who “enters a dwelling without permission and, at any time while he or she is … present in … the dwelling, commits a misdemeanor.” It therefore appears that no criminal intent at the moment the defendant’s presence becomes unlawful is required by the Michigan statute. The district court, however, read Taylor’s “remaining in” clause to plainly encompass Quarles’ prior conviction, counted it as a prior under the ACCA, and sentenced Quarles to 204 months (17 years) in prison. The U.S. Court of Appeals for the 6th Circuit affirmed, noting that a circuit split exists on whether ACCA burglary should be limited to “criminal intent at entry” crimes, and finding that Taylor’s “remaining in” language necessarily means that “the [necessary criminal] intent can be developed while remaining in” the dwelling.
Interestingly, the 6th Circuit appeared to focus only on the difference between criminal intent existing at the time of “entry” and intent developed while “remaining in,” rather than on Quarles’ more microscopic distinction between criminal intent existing at the “initial moment” of remaining and intent developed sometime later while remaining. Quarles neatly uses the phrases “contemporaneous intent” and “first unlawful remaining” to capture his distinction. The government maintains, however, that nothing in Taylor supports this “level of granularity,” and that a “plain-English application of Taylor” requires that its “remaining in” language be given its “ordinary meaning,” encompassing the entire “period when a person stays inside.” But Quarles responds that a majority of states in 1986 restricted burglary to crimes in which criminal intent was present at the moment of entry or of the initial trespass, and that “remaining in” should be read in light of that more limited view.
In addition to his language argument, Quarles argues that the Supreme Court should be very precise and not overextend the reach of the ACCA, because the Michigan statute (and others like it) can sweep in sympathetic offenders upon whom Congress would not have intended to impose the ACCA’s lengthy and mandatory penalty. (Quarles hypothesizes the “homeless defendant with a handful of convictions for committing low-risk, spur-of-the-moment crimes of opportunity, such as stealing clothing or food, while trespassing to seek shelter from the cold.”) As societal concern about “mass incarceration” increasingly draws attention, this point could resonate with some justices at argument.
Significantly, the Supreme Court has adopted a “categorical approach” for examining state criminal statutes when applying the ACCA. Under the categorical approach, courts must look to the statutory elements of an offense, rather than the defendant’s conduct, when determining the nature of a prior conviction. Therefore, the actual facts of Quarles’ home-invasion offense cannot be examined to decide the question presented here. The government argues that the “modified categorical approach,” adopted by the court for some state statutes in 2016, allows us to know that the crime Quarles intended to commit in his home-invasion offense was assault; the government’s brief describes other offense-specific facts in an attempt to paint Quarles as “the paradigm picture for somebody that should fall within the ACCA.” Quarles says that the lower courts did not rely upon the government’s factual point about Quarles’ conduct (he pled nolo contendere without admitting facts), and that in any case the Taylor definition cannot encompass his conviction.
The complexities and criticisms of the categorical approach have been noted by a number of justices in the past, and may be examined in today’s argument in United States v. Davis (see the argument preview here). But Quarles seems more likely to turn solely on whether a majority of states in 1986 could be said to permit a broad “remaining in” view of burglary, because this term’s earlier opinion in Stitt appears to have settled that the majority view among the states when the ACCA was enacted controls for determining whether an offense qualifies as an ACCA predicate.
Although determining the states’ majority view might appear to be a simple matter of arithmetic, Quarles and the government present complex and competing views. The government appears to argue that 28 states had “remaining in” burglary statutes by 1986. But Quarles says that only a few of these states had examined his precise “moment of initial trespass” position, and that 15 states are now “best understood” to have agreed with his view (bringing the states with the government’s view to less than a majority). Because another 22 states did not, in 1986, allow “remaining in” burglary convictions at all, Quarles argues that the Taylor definition must go his way.
The government, unsurprisingly, does not agree with Quarles’ characterizations, and says that a majority of states did have “remaining in” statutes in 1986 and that those states never suggested Quarles’ “novel” distinction. “More fundamentally,” the government argues, the generic “plain language” definition of Taylor must be read naturally to refer to “a continuous period of time” and should control. Taylor’s generic definition, says the government, was intended to “simplify,” not “muddle” or “complicate and proliferate, ACCA litigation.” The court should not encourage what the government calls “hairsplitting,” and Taylor’s uniform, generic approach was designed to forestall it. Quarles calls this a government concession that the Taylor definition is “ambiguous” on his point – in fact, it seems as though most states, as well as the Taylor court, simply had not considered it. Thus, says Quarles, the “rule of lenity,” which requires an ambiguous criminal statute to be construed in a defendant’s favor, should lead the court to his position.
Although trying to predict the course of oral argument is a fool’s errand, I might wager that Quarles’ argument will not have much traction with a majority, even if the severity of the ACCA gives some justices pause. However, a different amicus argument, based on the same Michigan statutory language, seems to me to raise a serious concern.
A brief filed by the “Federal Public Defenders for the Northern, Western, and Southern Districts of Texas” presents a “related question” that would lead to relief for Quarles if answered in his favor. As noted above, the Michigan statute (and apparently those of at least four other states) permits conviction if the person “commits a misdemeanor” while unlawfully present in a dwelling. It does not say “with intent.” These amici argue that many misdemeanors can be committed without any “specific intent,” that is, with mere “recklessness, negligence, or even strict liability” (meaning no intent required). Yet the common law, and the Model Penal Code to which Taylor referred in developing its generic definition of burglary, generally required “purpose” for burglaries, a very high level of intent; and in 1986, only one state (Texas) had a “no intent” statute similar to Michigan’s. (Michigan’s “remaining in” statute was not enacted until 1994.) In a recent opinion, Judge Diane Sykes wrote for a panel of the U.S. Court of Appeals for the 7th Circuit that a conviction under a similar Minnesota burglary statute could not qualify as an ACCA predicate for this reason.
The government addresses this argument in a final footnote, saying it is not “fairly encompassed” within the question that Quarles has presented. (Supreme Court Rule 14.1 limits issues to those “fairly included” in the petition for certiorari.) The government also says that Quarles’ particular conviction was for assault, a “specific intent” crime – but that intent assertion is questionable, and also depends on application of a “modified categorical approach,” as discussed above. The “fairly encompassed” doctrine has been applied in the past broadly or narrowly, seemingly in whatever way a majority desires. We’ll see at argument whether any justices think it should be applied here – or whether this amicus argument, like most, will sink without a sound.