“Remaining-In Burglary” and the ACCA

The common-law judges of Olde England defined burglary very narrowly because it was a capital offense and they wanted to avoid hanging people for it. That produced the multi-element definition so popular* on law school criminal law exams. Once we stopped hanging people for burglary, legislatures broadened the definition, but they did not all broaden it in the same way or to the same extent.
This creates a problem for punishing habitual criminals prosecuted for a new crime by a different jurisdiction than the one in which the prior crime was committed. In the federal Armed Career Criminal Act, a felon who illegally possesses a gun and has three designated priors gets 15+ years and is not eligible for probation. See 18 U.S.C. §924(e). “Burglary” is one of the designated priors, but what exactly is a “burglary”?
This multi-faceted question has been to the Supreme Court many times, and the Court addressed one more facet today in Quarles v. United States, No. 17-778. At what point in the crime must the perpetrator have formed the intent to steal, or commit some other crime, within the building?
Way back in 1990, the Supreme Court decided Taylor v. United States, 495 U.S. 575. The high court decided to take a “categorical” approach to the problem. That is, federal courts will not consider what the perpetrator actually did but only how the state defines the crime of which he was convicted. For burglary, if the state’s definition of the crime “substantially corresponds” to or is narrower than the “generic” definition of burglary in effect around the country at the time Congress enacted the ACCA, then it counts as a prior for the ACCA sentencing provision.
This can produce some odd results because some states have odd extensions of their burglary statutes. In Oklahoma, it is burglary to break open a gumball machine and steal the gumballs. See Okla. Stat. tit. 21 §1435. Colorado has a better approach. The gumball burglar is guilty of a distinct and lower degree of burglary. See Colo. Rev. Stat. §18-4-204. So a real burglar who breaks into a building to steal stuff (“generic burglary”) would earn a prior that counts for ACCA if he committed the crime in Colorado but not in Oklahoma.
“At  common  law,” Justice Kavanaugh’s opinion reminds us, “burglary was confined to unlawful breaking and entering a dwelling at night with the intent to commit a felony.” By the time of ACCA, a majority of states had dispensed with the elements of breaking and nighttime. Importantly for the issue in this case, a majority had also extended burglary to illegally remaining within a building, even if the initial entry was lawful, such as by walking into a department store and hiding in the fitting room until after closing.
The intent to steal (or whatever) need not exist at the time of entry in most states but may be formed at any time while remaining in the building. Personally, I think this is more a necessity of proof than it is a substantive decision as to what the legislature wants to punish. Proving beyond a reasonable doubt when the perpetrator formed the evil intent would be impossible in many cases.
Quarles argued that “remaining-in burglary” is only “generic burglary” for Taylor if the state defines the crime so that “the intent to commit a crime [must exist] at the exact moment when he or she first unlawfully remains in a building or structure.” Very few states actually define it that narrowly, so adopting this argument would exclude all burglary convictions from over half the country from the reach of the ACCA provision, even though Congress expressly wanted burglary included.
Pretty easy case, right? The Court unanimously rejected that argument.
Why did they take it in the first place? Because there was a circuit split. Which circuits bought that far-fetched argument?
According to the certiorari petition, the Fifth and Eighth Circuits bought it. The Fourth, Sixth, Ninth, and Tenth Circuits rejected it. Oh, well. The Scheidegger Circuits Divisible By Three Theory just bit the dust.
Justice Thomas concurs that the opinion of the Court applies the ill-considered Taylor precedent correctly. He would reconsider that precedent and let juries determine what the perpetrator actually did on the prior offense rather than count or exclude priors based on state definitional quirks. That question must await another day in court or Congress.
* Popular with the professors writing the exams, that is. Not so much with the students taking them.


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