Intent or Opportunity? Eighth Circuit Analyzes Intent Element of Generic Burglary.

• Author: Mitchell, Rachel

United States v. McArthur, 850 F.3d 925 (8th Cir. 2017)

1. INTRODUCTION

   The Armed Career Criminal Act ("ACCA") is a federal law that imposes mandatory enhanced sentencing for offenders found to have multiple prior convictions for violent crimes. (1) What constitutes a prior violent offense, however, has been the subject of over twenty-five years of litigation. (2) The ACCA provides three paths to punish criminals based on prior violent offenses, one of which is an enumerated list of crimes that are statutorily defined by the ACCA as "violent felonies." (3) Although burglary is one of the enumerated offenses, (4) Congress failed to specifically define burglary itself for purposes of the ACCA. (5) As a result, much of the litigation surrounding enhanced sentencing under the ACCA has revolved around whether all state burglary statutes count as violent felonies, given that there is no common definition. (6)

   In an attempt to solve this dilemma, the United States Supreme Court developed elements of "generic burglary" to hone in on what constitutes a prior conviction for burglary under the ACCA. (7) In Taylor v. United States, the Court wrote that generic burglary is "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with [the] intent to commit a crime." (8) The elements of generic burglary, however, have themselves been the subject of intensive litigation, resulting in multiple circuit splits on various aspects of the elements. (9) One element that has recently divided the circuit courts is whether the intent element of generic burglary is required to form at a particular time relative to an unlawful entry or remaining in a building or structure. (10)

   This Note examines the U.S. Court of Appeals for the Eighth Circuit's decision in United States v. McArthur, which held that intent is required to form at the moment of unlawful entry or remaining in for the purposes of enhanced sentencing under the ACCA. (11) Part II lays out the facts and holding of the McArthur decision. Part III discusses the legal background relevant to the McArthur decision. The legal background includes an overview of the relevant portions of the ACCA, several United States Supreme Court decisions interpreting the ACCA, and the case law from the U.S. Courts of Appeal for the Fourth, Fifth, and Sixth Circuits, which created the split. Part IV details the unanimous McArthur opinion. Part V argues that McArthur is the superior opinion in the circuit split and the one that the United States Supreme Court should adopt when it resolves the issue. In the alternative, this Note makes the case that the ACCA is vague and should be ruled unconstitutional. Part VI concludes the Note.

2. FACTS AND HOLDING

   William Earl Morris is a member of Native Mob, a Minnesota prison and street gang. (12) Morris and two other gang members, Wakinyan McArthur and Anthony Cree, jointly stood trial in 2013 for a multitude of crimes related to their involvement with Native Mob. (13) In early 2010, mob members determined that a former associate, Amos LaDuke, "needed to be wacked" and gave Morris a gun in case he came across LaDuke. (14) On March 4, 2010, Cree, Morris, and two other gang associates went to Cass Lake, Minnesota. Upon finding LaDuke walking there, Morris exited the vehicle with his firearm. (16) LaDuke saw Morris and tried to run from him. (17) In response, Morris fired multiple rounds, hitting LaDuke three times. (18) The attack stopped when an ex-police officer drove his truck in-between the two men. (19) At that point, Morris abandoned the scene. (20) Authorities quickly found and arrested Morris. (21)

   Morris was charged in the U.S. District Court for the District of Minnesota with six federal felonies: (1) conspiracy to participate in racketeering; (2) conspiracy to carry a firearm during and in relation to a crime of violence; (3) attempted murder in relation to racketeering; (4) assault with a dangerous weapon in aid of racketeering; (5) carrying and using a firearm during a crime of violence; and (6) felon in possession of a firearm. (22) After six weeks at trial, the jury acquitted Morris of counts one and two and convicted him of counts three through six. (23)

   At sentencing, the trial judge found, over Morris' objection, that Morris' three prior convictions for third-degree burglary (24) under Minnesota state law constituted "violent felonies" for purposes of enhanced sentencing under [section] 924(e) (25) of the ACCA. (26) This finding meant that Morris faced a mandatory minimum sentence of fifteen years to life in prison for his conviction as a felon in possession of a firearm. (27) The judge sentenced Morris to thirty years in prison on that count alone, and he was sentenced for a total of thirty-five years for all of his convictions combined. (28)

   On appeal, Morris alleged that the trial court erred when it found that his prior burglary convictions were sufficient to subject him to enhanced sentencing under the ACCA. (29) Morris argued that the Minnesota statute's elements for burglary were indivisible under Mathis v. United States (30) and broader than the elements the Court had established for "generic burglary" in Taylor v. United States (31) Therefore, Morris argued his prior convictions were not "violent felonies" for the purposes of the ACCA. (32) The government agreed that the statute was indivisible but still contended that Minnesota's statute constituted a "violent felony." (33)

   The Eighth Circuit agreed with Morris and held that Morris' prior burglary convictions were not "violent felonies" within the meaning of the ACCA because the Minnesota burglary statute at issue has a broader definition of burglary than does Taylor (34) As a result, Morris' sentence was vacated and remanded for resentencing. (35)

3. LEGAL BACKGROUND

   The analysis in the Eighth Circuit's decision involved two primary questions. (36) First, are the alternative phrasings in Minnesota's burglary statute elements of different crimes, or are they factual means of satisfying a single element of a single crime? (37) Second, does "generic burglary" under Taylor require that the element of intent to commit a crime exist at the moment of unlawful entry into a building, or may it evolve at any point during the unlawful occupation of the building in order to be a "violent felony" under the ACCA? (38) This Part begins by examining relevant portions of the ACCA and analyzing the way the United States Supreme Court has defined burglary. Then, this Part looks at how the other circuits have answered the intent question.

   1. The Requirements of the Armed Career Criminal Act and the Court's Definition of Burglary

      The ACCA was enacted under the Reagan Administration as part of the Comprehensive Crime Control Act of 1984. (39) The ACCA made it a crime for any person who had been "convicted in any court of [] a crime punishable by imprisonment for a term exceeding one year" (40) to possess a firearm. (41) A violation of this law imposed a mandatory maximum sentence of ten years. (42) Furthermore, a person who violated the law and who had three or more convictions for "violent felonies" would receive an enhanced minimum sentence of fifteen years to life in prison. (43) As originally passed, punishment for the enhanced violation also precluded the offender from obtaining parole. (44) In 1994, Congress amended the law to allow offenders sentenced under [section] 924(e) to be considered for parole. (45) One of the ways that Congress defined a "violent felony" was as a crime that is both punishable for more than one year in prison and is a burglary. (46) This language in the ACCA soon proved problematic because burglary has no "single accepted meaning" and "the criminal codes of the [s]tates define burglary in many different ways." (47) The United States Supreme Court attempted to remedy this problem in Taylor.

      In Taylor, the defendant pleaded guilty to a felon in possession of a weapon charge, and the trial court sentenced him in accordance with the enhancement violation under the ACCA because he had four prior convictions, including robbery, assault, (48) and two second-degree burglaries under Missouri law. (49) The defendant appealed and claimed that his burglaries could not be counted on the basis that they had not posed a risk to another person. (50) The defendant argued that Missouri law distinguishes violent burglary from nonviolent burglary because it sets out the crimes in varying degrees. (51) Taylor was convicted under second-degree burglary, which referenced unarmed burglary in an unoccupied building. (52)

      The Court examined the legislative history of the ACCA and found that Congress likely intended burglary to have a modern definition that matched the same basic elements found in a majority of the states, regardless of what the crime was labeled. (53) The Court relied on the Model Penal Code and LaFave & Scott's Substantive Criminal Law treatise to determine the common elements of burglary are "an unlawful or unprivileged entry into, or remaining in, a building or other structure with intent to commit a crime." (54) The Court also held that when a sentencing court is looking at prior crimes to determine if they meet the "generic burglary" elements, the sentencing court need only consider the statutory definitions of the offenses and not the particular facts of the prior crimes. (55) Finally, the Court held, for purposes of the ACCA, the elements of a state statute had to be the same as or narrower than what the Court defined as "generic burglary" or the jury instructions had to show that they had to find those elements. (56)

      The Taylor Court was silent about how to treat a state statute that provided alternative versions of the crime. In Descamps v. United States, the Court summarized its precedents since Taylor regarding the divisibility of statutes that provided for alternative ways to commit burglary. (57) The Court stated that when...