Opinion analysis: A straightforward definition of burglary for ACCA

In a unanimous 10-page opinion this morning, Justice Brett Kavanaugh answered for the Supreme Court what he described as an exceedingly narrow question and affirmed a prosecution-friendly definition of burglary as used in the Armed Career Criminal Act (18 U.S.C. 924(e)). In a brief concurrence, Justice Clarence Thomas repeated his long-standing view that the court should consider whether its [categorical] approach is actually required for ACCAs enumerated offenses. But the court was plainly not interested in using this case to examine that or any other more complicated questions of statutory construction. Under this Courts precedents, the categorical ACCA definition of burglary in Section 924(e) includes, if state law permits it, any unlawful remaining in presence in a building or structure when the defendant forms the intent to commit a crime at any time (emphasized twice in the opinion).

Background and Quarles esoteric argument

As previewed, Jamar Quarles was previously convicted under a Michigan burglary statute that encompasses not just common-law offenders (those who, in Blackstones conception repeated today, break and enter a dwelling at night with the intent to commit a felony), but also anyone who enters a dwelling without permission and, at any time while he or she is present in the dwelling, commits a misdemeanor. A majority of states have similarly broadened the common-law definition of burglary to include such remaining in offenses. Meanwhile, the ACCA requires enhanced imprisonment terms for federal felon-in-possession offenders who have three prior convictions for various felonies including burglary. The question presented in this case was whether a remaining in burglary conviction fits within the categorical definition of burglary that the Supreme Court adopted in Taylor v. United States back in 1990.

To account for the many variations in state criminal law statutes, Taylor adopted a generic definition of burglary for federal purposes: unlawful or unprivileged entry in, or remaining in, a building or structure, with intent to commit a crime. The Supreme Court explained then that so long as the state law in question substantially corresponds to (or is narrower than) generic burglary, the conviction qualifies. Moreover, said Taylor, a categorical approach, which examines all possible applications of the state criminal statute, rather than the actual facts of any particular prior conviction, must be used.

Because Taylor embraced a remaining in burglary definition, Quarles prior Michigan remaining in conviction might seem to qualify easily as a burglary under ACCA. Indeed, the U.S. Court of Appeals for the 6th Circuit had found that it did. But Quarles presented a more intricate (or as Kavanaugh described it, esoteric) distinction: Must the intent to commit a crime while unlawfully remaining in a structure exist at the exact moment when he or she first unlawfully remains or, as the Michigan statute says at any time? Quarles argued that the prior, narrower definition should apply for Taylor purposes, because (a) the common-law definition of burglary had used an exact time of entry intent requirement, and (b) in 1986, when Congress enacted Section 924(e), only five states had clearly adopted a broader at any time definition. The Taylor court said that it intended to adopt a burglary definition that most states used at that time, and five states is far from a majority. So Quarles argued that the subsequent adoption of a broader at any time intent requirement should be held to go beyond Taylors generic definition.

Todays opinion: remaining in means at any time during the remaining

Todays unanimous court made quick work of rejecting Quarles position. First, wrote Kavanaugh, [i]n ordinary usage, remaining in refers to a continuous activity — the Supreme Court has followed that ordinary meaning in analogous legal contexts. Moreover, a majority of state burglary statutes in 1986 did encompass the remaining in concept, and all [five] of the state appellate courts that had definitively addressed th[e timing] issue as of 1986 had adopted the at any time position. Finally, excluding such burglaries from ACCA would make little sense and would defeat Congress stated objective of requiring enhanced imprisonment terms for repeat armed career criminals. The possibility of a violent confrontation does not depend on the exact moment that criminal intent is formed, and we should not lightly conclude that Congress enacted a self-defeating statute. It was not likely that, when directing that repeat burglars be imprisoned, Congress intended to include only some remaining in burglars while excluding others.

An aside: as we first-year criminal law professors routinely note, the common-law definition of burglary turned precisely on such an esoteric distinction: At common-law, felonious intent had to be present at the moment of entry or the breaking and entering was not burglary. The Supreme Courts only reference to this point was oblique: Kavanaugh noted that by the time Congress passed ACCA, burglary statutes had long since departed from the common-law formulation. (Kavanaughs 10-page opinion also noted, at the end, that the court was not addressing other arguments that Quarles presented but did not preserve.)

To sum up, the opinion concludes, the same sources examined in Taylor lead to the conclusion today that criminal intent that arises at any time while unlawfully remaining in a structure falls within the range of ACCAs enhanced sentencing requirement.

Conclusion

Quarles is the third ACCA opinion issued by the Supreme Court this term (U.S. v. Stitt and Stokeling v. U.S. are the other two.). All three have rejected the defendants arguments. And most of the justices appear to be no longer interested in revisiting the categorical approach, even as Thomas repeats his criticism that cases like Quarles demonstrate[] [its] absurdity. (Certainly Thomas is correct that Quarles esoteric intent argument is starkly different from the reality of the violent and unsavory individual facts of Quarles present and prior convictions facts which, relevant or not, Kavanaughs brief opinion took time to describe.)

As I have previously noted, Justice Elena Kagan has referred, at prior ACCA arguments this term, to proposed federal legislation that would revise ACCA. But with the government winning all three ACCA cases this term, prospects for a majority of both houses of Congress perceiving a pressing need for legislative action seem dim. Todays unremarkable and unanimous opinion suggests that the justices similarly have lost interest. Lower federal courts will undoubtedly continue to struggle with many esoteric details of Taylors categorical approach to ACCA. But for now, the Supreme Court seems content to leave that struggle below, while sending lower courts a general message that ordinary meaning and common sense should control.