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United States v. Glispie

United States Court of Appeals, Seventh Circuit

November 19, 2019

United States of America, Plaintiff-Appellee,
v.
Jeremy Glispie, Defendant-Appellant.

          Argued September 25, 2019

          Appeal from the United States District Court for the Central District of Illinois. No. l:18-cr-10002-JES-JEH-1 - James E. Shadid, Judge.

          Before Ripple, Rovner, and Brennan, Circuit Judges.

          Ripple, Circuit Judge.

         On January 23, 2018, the Government filed a single-count indictment against Jeremy Glispie for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Mr. Glispie entered a plea of guilty, but reserved the right to challenge his anticipated designation as an armed career criminal based on his prior convictions for residential burglary under Illinois law. Following our guidance, the district court concluded that residential burglary in Illinois is no broader than "generic burglary" and that it therefore qualifies as a violent felony under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii). Consequently, it sentenced Mr. Glispie as an armed career criminal and imposed a sentence of 180 months.

         Before this court, Mr. Glispie renews his objection to his designation as an armed career criminal based on his convictions for residential burglary under Illinois law. Acknowledging that our decision in Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016), is controlling, he urges us to revisit that decision. According to Mr. Glispie, Dawkins did not explore all of the relevant aspects of Illinois burglary. Had we fully considered the question, he submits, we would have reached the conclusion that residential burglary in Illinois covers a broader swath of conduct than generic burglary for purposes of the ACCA and, therefore, cannot be used as a predicate offense for purposes of the ACCA.

         After considering the briefs and hearing oral argument, we conclude that Mr. Glispie has raised an important issue that has not been considered fully: whether the limited-authority doctrine applies to the Illinois residential burglary statute. As we will explain, if the limited-authority doctrine applies to residential burglary, then a conviction for Illinois residential burglary is broader than generic burglary and cannot qualify as an aggravated felony for purposes of the ACCA. If, however, the limited-authority doctrine does not apply to Illinois residential burglary, then a conviction under that statute is no broader than generic burglary and qualifies as an aggravated felony. Because the Supreme Court of Illinois has not made this determination, and because the question is likely to arise frequently and to affect the administration of justice in both the state and federal courts, we respectfully seek the assistance of the Supreme Court of Illinois by certifying this controlling question of law.[1]

         I.

         Whether Mr. Glispie's convictions qualify as violent felonies under the ACCA requires us to look at the elements of generic burglary under the ACCA as well as the elements of residential burglary under Illinois law. We turn first to the ACCA, then to Illinois law, and finally to our cases that have addressed the intersection of the two.

         A. Generic Burglary under the ACCA

         The ACCA "increases the sentences of certain federal defendants who have three prior convictions 'for a violent felony.'" Descamps v. United States, 570 U.S. 254, 257 (2013) (quoting 18 U.S.C. § 924(e)). For purposes of the ACCA, a violent felony is 1) a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another" or 2) "burglary, arson, ... extortion, [or] involves the use of explosives." 18 U.S.C. § 924(e)(2)(B).[2] To determine whether a past conviction qualifies as one of the enumerated offenses, courts employ the categorical approach:

They compare the elements of the statute forming the basis of the defendant's conviction with the elements of the "generic" crime-i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.

Descamps, 570 U.S. at 257.

         The Supreme Court has addressed the definition of generic burglary under the ACCA on several occasions. In Taylor v. United States, 495 U.S. 575, 598 (1990), the Court held, for the first time, that burglary as set forth in § 924(e)(2)(B) meant "'burglary' [in] the generic sense in which the term is now used in the criminal codes of most States." The Court further explained that, "[a]lthough the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id. The Court then turned to "the problem of applying this conclusion to cases in which the state statute under which a defendant is convicted varies from the generic definition of 'burglary.'" Id. at 599. It concluded that "the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602. If the statutory definition of the prior crime of conviction is narrower than generic burglary, or has "minor variations in terminology," id. at 599, it qualifies under § 924(e)(2)(B)(ii) as a violent felony. If the definition in the state statute is broader than generic burglary, for instance, "by eliminating the requirement that the entry be unlawful, or by including places, such as automobiles and vending machines, other than buildings," a conviction under that statute would not qualify as a predicate under the ACCA. Id. This process of comparing the elements of the generic crime to those set forth in the state statute of conviction has come to be known as the "categorical approach."

         The Court also spoke directly to the requirements of generic burglary in Descamps. The precise issue before the Court in Descamps focused on what legal authorities and record documents may be used to determine whether an offense qualifies as one of the enumerated generic offenses under the ACCA. Specifically, the Court addressed whether a sentencing court may "decide, based on information about a case's underlying facts, that the defendant's prior conviction qualifies as an ACCA predicate even though the elements of the crime fail to satisfy our categorical test." Descamps, 570 U.S. at 258. In Descamps, the Government had asked the district court to impose an enhanced sentence under the ACCA based in part on the defendant's conviction for burglary under California law.[3] The law "provides that a 'person who enters' certain locations 'with intent to commit grand or petit larceny or any felony is guilty of burglary.'" Id. at 258-59. The Court noted that the "statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours." Id. at 259. "In sweeping so widely," the Court continued, "the state law goes beyond the normal, 'generic' definition of burglary." Id. At the trial level, Descamps had argued that this "asymmetry of offense elements precluded his conviction ... from serving as an ACCA predicate, whether or not his own burglary involved an unlawful entry that could have satisfied the requirements of the generic crime." Id. The district court, however, had disagreed. Looking beyond the statutory elements of the offense to Descamps's actual conduct, the district court concluded that Descamps's conduct satisfied the generic definition of burglary for purposes of the ACCA.

         The Supreme Court, however, held that the district court had erred in deviating from the categorical approach. The Court explained that the "modified categorical approach" employed by the district court "helps implement the categorical approach when a defendant [has been] convicted of violating a divisible statute." Id. at 263. If the statute is not divisible-does not "comprise[] multiple, alternative versions of the crime"-the modified categorical approach simply does not apply. Id. at 262-64. The Court therefore concluded that, in Descamps's case, the modified approach had no role to play because "[t]he dispute here does not concern any list of alternative elements. Rather," the Court continued,

it involves a simple discrepancy between generic burglary and the crime established in § 459. The former requires an unlawful entry along the lines of breaking and entering. The latter does not, and indeed covers simple shoplifting... . In Taylor's words, then, §459 "define[s] burglary more broadly" than the generic offense. And because that is true-because California, to get a conviction, need not prove that Descamps broke and entered-a § 459 violation cannot serve as an ACCA predicate. Whether Descamps did break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. ... We know Descamps' crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over.

Id. at 264-65 (citations and parallel citations omitted); see also Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016) (observing that, in Descamps, it had "found that a California statute swept more broadly than generic burglary because it criminalized entering a location (even if lawfully) with the intent to steal, and thus encompassed mere shoplifting").

         Following Descamps, the Court twice has addressed the elements of generic burglary. In United States v. Stitt, 139 S.Ct. 399 (2018), the Court considered "whether the statutory term 'burglary' includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation." Id. at 403-04. The Court held that it does. The Court noted that it had been "clear in Taylor that Congress intended the definition of 'burglary' to reflect 'the generic sense in which the term [was] used in the criminal codes of most States' at the time the Act was passed." Id. at 406 (quoting Taylor, 495 U.S. at 598). At that time, "a majority of state burglary statutes covered vehicles adapted or customarily used for lodging-either explicitly or by defining 'building' or 'structure' to include those vehicles." Id. Additionally, Congress

viewed burglary as an inherently dangerous crime because burglary "creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate." An offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging runs a similar or greater risk of violent confrontation.

Id. (citations omitted) (quoting Taylor, 495 U.S. at 588). The second case, Quarles v. United States, 139 S.Ct. 1872 (2019), decided just last term, addressed "[t]he exceedingly narrow question"

whether remaining-in burglary[4] (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

Id. at 1875. The Court concluded it was the latter. Moving from general to specific, the Court "sum[med] up" its holding accordingly:

The Armed Career Criminal Act does not define the term "burglary." In Taylor, the Court explained that "Congress did not wish to specify an exact formulation that an offense must meet in order to count as 'burglary' for enhancement purposes." And the Court recognized that the definitions of burglary "vary" among the States. The Taylor Court therefore interpreted the generic term "burglary" in § 924(e) in light of: the ordinary understanding of burglary as of 1986; the States' laws at that time; Congress' recognition of the dangers of burglary; and Congress' stated objective of imposing increased punishment on armed career criminals who had committed prior burglaries. Looking at those sources, the Taylor Court interpreted generic burglary under § 924(e) to encompass remaining-in burglary. Looking at those same sources, we interpret remaining-in burglary under § 924(e) to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in a building or structure.

Id. at 1879 (quoting Taylor, 495 U.S. at 599, 598).

         Drawing from these cases, generic burglary requires "at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor, 495 U.S. at 598. "[O]ther structure[s]" include a vehicle "that has been adapted or is customarily used for overnight accommodation." Stitt, 139 S.Ct. at 403-04. Regardless of the type of structure, however, the entry itself must be unlawful; an intent to later commit a crime or theft, ...


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