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Brown v. United States

United States Court of Appeals, Eighth Circuit

July 3, 2019

Jerry N. Brown Petitioner - Appellant
v.
United States of America Respondent - Appellee

          Submitted: January 16, 2019

          Appeal from United States District Court for the Western District of Missouri - Springfield

          Before LOKEN, GRASZ, and STRAS, Circuit Judges.

          STRAS, CIRCUIT JUDGE.

         The question in this case is whether Jerry Brown's 1977 Missouri conviction of second-degree burglary is a "violent felony" under the Armed Career Criminal Act. Because we conclude that it is not, we remand for resentencing.

         I.

         In 2007, Brown pleaded guilty to being a felon in possession of a firearm. The district court imposed a 15-year statutory-minimum sentence under the Armed Career Criminal Act ("ACCA") because he had three previous convictions for "violent felon[ies]." 18 U.S.C. § 924(e)(1). One of them was a 1977 conviction under Missouri's since-repealed second-degree-burglary statute. Without the three felonies, he would have faced a maximum sentence of 10 years in prison. See id. § 924(a)(2).

         Nearly a decade later, Brown moved to correct his sentence. See 28 U.S.C. § 2255(a). His argument was that several Supreme Court decisions had cast doubt on whether his second-degree-burglary conviction qualified as a violent felony. We granted a certificate of appealability to address this question.[1] Applying de novo review, see Kelly v. United States, 819 F.3d 1044, 1047 (8th Cir. 2016), and setting aside the "timeliness and other procedural" objections that the government has waived, we conclude that Brown's second-degree-burglary conviction was not a violent felony.

         II.

         ACCA includes a list of offenses that qualify as "violent felon[ies]." See 18 U.S.C. § 924(e)(2)(B)(ii). One of the enumerated offenses is "burglary," but ACCA does not define burglary or specify its elements. See id. In the absence of a definition, the Supreme Court has interpreted ACCA's enumerated-offenses clause as incorporating a "generic, contemporary meaning" of each listed offense that is "independent of the labels employed by the various States' criminal codes." Taylor v. United States (Taylor I), 495 U.S. 575, 592, 598 (1990). To determine whether Brown's conviction counts as generic burglary, "we focus on the elements of the crime"-as opposed to the actual facts of what he did-and "compare [them] with those of the generic enumerated offense." United States v. Schneider, 905 F.3d 1088, 1093 (8th Cir. 2018). If Missouri's 1977 definition of second-degree burglary is "the same as, or narrower than," generic burglary, then Brown's conviction counts. Descamps v. United States, 570 U.S. 254, 257 (2013); see also Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). If not, then Brown does not have three predicate convictions, and we must reverse and remand for resentencing. See Mathis, 136 S.Ct. at 2248.

         The Supreme Court has defined "generic" burglary as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor I, 495 U.S. at 598; see also United States v. Stitt, 139 S.Ct. 399, 403-04 (2018) (including "a structure or vehicle that has been adapted or is customarily used for overnight accommodation" within the generic definition of burglary). The statute in effect at the time of Brown's conviction prohibited

breaking and entering any building, the breaking and entering of which shall not be declared by any statute of this state to be burglary in the first degree, or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein.

Mo. Rev. Stat. § 560.070 (1969). Some of the locations contemplated by the statute-such as freight cars, booths, and fishing boats-are so "nontypical" that they fall "outside the scope of" generic burglary. Stitt, 139 S.Ct. at 407 (concluding that "ordinary boats and vessels . . . and railroad cars" are not included within the definition of generic burglary); see also Taylor I, 495 U.S. at 599. So if the statute "create[d] [just] a single crime [with] a single set of elements," Schneider, 905 F.3d at 1090, the crime was broader than generic burglary. Under this interpretation, the listed locations would be means of committing a single crime, not separate elements defining multiple crimes. See Mathis, 136 S.Ct. at 2249 (defining "means" as "various factual ways of committing some [element] of the offense").

         On the other hand, it is possible that each listed location is an element of a separate crime: burglary of a building, burglary of a booth, and so on. See Schneider, 905 F.3d at 1090 (explaining that some statutes "define multiple crimes by listing more than one set of elements"). There is no dispute here that Brown burglarized a building. See Shepard v. United States, 544 U.S. 13, 26 (2005) (explaining that the court can look to a limited set of record documents to identify the crime of conviction). So if the Missouri statute created a separate crime for "burglary of a building," then his conviction would count as generic burglary even if the burglary of another listed location would not have. Under this interpretation, the listed locations would be elements, not means. See Mathis, 136 S.Ct. at 2248 ...


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