Thursday, June 28, 2018

United States v. Naylor

            On November 25, 2015, Charles Naylor II pleaded guilty to being a felon in possession of a firearm and ammunition.[1]  The district court found that Naylor’s four prior convictions for Missouri second-degree burglary qualified as violent felonies, so it subjected him to enhanced sentencing under the Armed Career Criminal Act (ACCA) and imposed a sentence of 180-months in prison followed by three years of supervised release.[2]  The enhanced sentence was affirmed by a panel of the United States Court of Appeals for the Eighth Circuit in March 2017.[3]  On subsequent appeal, the Eighth Circuit, en banc, vacated the sentence and remanded for resentencing, holding that second-degree burglary, as defined in Missouri’s statute, does not constitute a violent felony under the ACCA, overturning the precedent of United States v. Sykes.[4] 
I. Facts and Holding
            Naylor’s sole point of contention on appeal was the district court’s classification of his past Missouri second-degree burglary convictions as “violent felonies” which resulted in a mandatory minimum of fifteen years.[5]  In his plea agreement, Naylor reserved his ability to appeal the “court’s determination that Missouri second-degree burglary is a predicate violent felony.”[6]
            Naylor’s appeal was originally heard by a panel of three judges on the Eighth Circuit Court of Appeals.  The panel was tasked with determining whether the ACCA’s definition[7] of burglary aligned with the Missouri law under which Naylor was previously convicted.  The panel affirmed previous rulings that Missouri’s burglary statute lists alternative methods of committing the crime (i.e., burglary of a building or an inhabited structure) and concluded that the statute was divisible.[8]  Consequently, the panel relied on the “modified categorical approach” used in Sykes, which allowed certain convictions under Missouri’s second-degree burglary law, like Naylor’s, to constitute violent felonies.[9]  
            Judge Jane Kelly concurred in the judgment, stating that under the lodestar for resolving this particular question of statutory interpretation, Mathis v. United States,[10] the Missouri second-degree burglary statute could be interpreted differently.[11]  Under Mathis, a court must determine if the alternatives listed in a statute are “elements” or “means.”[12]  If the alternatives are deemed “elements,” the statue is divisible and a review of the previous conviction is required to determine if the crime, as committed, matches the definition of the ACCA.  If the alternatives are deemed “means,” the statute is indivisible and the whole should be compared to the ACCA’s definition.[13] 
With the Mathis framework in mind, Judge Kelly argued that the Missouri burglary statute lists means, not elements, and should be considered under a categorical approach where the text of the Missouri statute, in whole, is compared to the ACCA’s definition of burglary.[14]  If the two definitions do not properly align, it was argued, the prior felonies should not count.[15]  However, Judge Kelly lamented that the panel was bound to follow the precedent in Sykes that allowed the court to examine Naylor’s previous second-degree burglary convictions and compare the elements of those to the ACCA.[16]
            The panel’s affirmation of the district ruling was appealed to the Eighth Circuit, en banc, which considered whether Missouri’s second-degree burglary statute lists means or elements.
II. Legal Background
            The ACCA is federal legislation meant to enhance the sentence of individuals convicted of firearms charges when they have at least three previous convictions for either violent felonies or drug offenses, even if those previous convictions were in state court.[17]  If a defendant’s previous conviction qualifies as either a violent felony or drug offense, the sentencing court is required to issue a minimum penalty of fifteen years in prison.[18]  While the ACCA defines a “violent felony” as any crime that carries a sentence exceeding one year imprisonment and involves, inter alia, “burglary, arson, or extortion,” it leaves the exact definition of burglary undefined.[19]  As a result of the ACCA’s lack of definitional guidance, combined with the gravity of an ACCA sentence enhancement, the classification of burglary convictions as “violent” has been frequently contested.
            In Taylor v. United States the Supreme Court of the United States held that the term burglary in the ACCA statute “must have some uniform definition independent of the labels employed by the various States’ criminal codes.”[20]  The Court then fashioned the following definition of burglary for the ACCA by which individual state statutes could be evaluated: “convicted of any crime, regardless of its exact definition . . . having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”[21]  Missouri’s second-degree burglary statute proscribes activity where one “knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.”[22]  Elsewhere in Missouri statutes at the time Naylor was convicted, inhabitable structure was defined, inter alia, as a structure like a ship or airplane, where “any person lives or carries on business . . . [or] is used for overnight accommodation . . . regardless of whether a person is actually present.”[23] 
The Eighth Circuit addressed whether the ACCA and the Missouri second-degree burglary statute are commensurate in United States v. Sykes.[24]  Sykes relied on Mathis v. United States, a United States Supreme Court decision that held a prior conviction cannot count as a predicate felony under the ACCA if the definition includes elements that make the statute broader than the generic definition supplied in Taylor.[25]  The Court in Mathis announced a categorical approach of statutory construction and instructed other courts to evaluate whether a statute’s elements are commensurate with the generic definition announced in Taylor by looking only at the language of the laws and not the specific facts of any case.[26]  However, a modified categorical approach is necessary when the statute is divisible, listing elements in the alternative.[27]  In this situation, the court should evaluate the defendant’s convictions to ascertain if the elements in the record match the generic definition.[28]  Sykes found that the use of the word “or” in Missouri’s statute between the possible locations of the crime made them elements in the alternative, and used the modified categorical approach.[29]
III. Instant Decision
            The Eighth Circuit, in an opinion written by Judge Jane Kelly, stated that Naylor’s previous convictions only count under the ACCA if Missouri’s second-degree burglary statute was the same or narrower than the ACCA’s definition.[30]  If the Missouri statue was broader, even if the defendant’s conduct actually aligned with the ACCA’s definition, the previous convictions could not count as violent felonies for ACCA enhancement.[31]  The court noted that when a statute operates in the alternative, as Missouri’s does, the alternatives must be categorized as either elements or means.[32]  If the alternatives are deemed “elements,” then the statute is divisible and the modified categorical approach is appropriate.[33]  If the alternatives are deemed “means,” i.e., a term to describe factual avenues that may be used to complete one element of a crime, then the statute is indivisible and can only be considered as a whole with the ACCA’s generic definition.[34]  Unlike the Iowa statute under consideration in Mathis, Missouri courts have not stated whether the burglary statute lists means or elements, so their role must be gleaned from case-law.[35]
            Looking at how Missouri courts have read similar laws, the Eight Circuit found that when disjunctive, the statute describes one crime that can be committed in a variety of ways.[36]  This allows the prosecutor to charge a defendant conjunctively and allows the jury to find a defendant guilty of one charge without having to describe which path they used to arrive at that conviction.[37]  By allowing the jury to refrain from delineating the path it took in reaching a conviction, the Eighth Circuit Court of Appeals concluded that Missouri courts have taken the position that the alternatives listed in the second-degree burglary statute are means, not elements.[38] 
Of particular note in the decision was the court’s reading of State v. Smith, wherein the Supreme Court of Missouri found that first and second-degree burglary share the common element of “entry into a building or inhabitable structure,” lumping the disjunctive phrase into one broad element of the crime.[39]  Notably, the majority did not find it persuasive that the charging documents or jury instructions used in Missouri required their users to specify building or inhabitable structure.[40]  The government argued that because a prosecutor must choose one but not the other, it demonstrated the alternatives are elements.[41]  The majority found this unpersuasive, noting that regardless of whether the alternatives are means or elements, there will always be a division of some sort based on the facts of the particular case.[42]  The majority found that the locations listed in the burglary statute were means, not elements, and utilized the categorical approach endorsed by Mathis.[43]  The Eighth Circuit, utilizing the categorical approach, found that Missouri’s second-degree burglary statute was broader than the definition of burglary provided in the ACCA, therefore convictions under the Missouri statute cannot provide the basis for ACCA sentence enhancement.[44]
            Judges James B. Loken and Bobby E. Shepherd offered dissenting opinions.[45]  Judge Loken noted that Taylor, which supplied the generic definition of burglary, was a Missouri case wherein the Supreme Court recognized that most of Missouri’s previous second-degree burglary statues included the generic definition.[46]  He further noted that Taylor embraced a liberal reading of the generic definition.[47]  On this foundation, Judge Loken concluded that despite the statute’s listing of possible locations (i.e., automobile or building) where a burglary may take place, “if the indictment or information and jury instructions show that the defendant was charged only with burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.”[48]  Finally, Judge Loken noted the legislative intent behind the ACCA – to cast a wide net beyond crimes that strictly involve force against others.[49]
            Judge Shepherd’s analysis focused on the charging documents.  Under Judge Shepherd’s view, any method of charging selected by the prosecutor must be supported by evidence, which indicates the alternatives listed in the burglary statute should be treated as elements, not means.[50]  Per Mathis, if something is charged, proved in court, and then submitted to a jury, it is an element.[51]  Therefore, if a prosecutor were to charge both entry of a building and inhabited structure, both would have to be proved, indicating they are elements.[52]  Judge Shepherd concluded by noting that Naylor’s previous guilty pleas specifically involved burglary of a “building,” to the exclusion of any other location.[53]  Given this, his past convictions comport with the general definition announced in Taylor and so his enhanced sentence should be upheld.[54]
IV. Comment
            The ACCA was passed in 1984 as an attempt to quell “career” criminals and repeat offenders who presented a danger to society.[55]  The impetus was a theory that the bulk of all crime was perpetrated by a small group of individuals, and a majority of those individuals committed burglaries and robberies.[56]  By creating a mandatory minimum for offenders with a record of three or more of those crimes, the overall crime rate, it was hoped, would decrease.[57]  Congress chose a vague definition for burglary to ensure that despite a variety of state statutes, “offenders might [not] escape punishment on a technicality.”[58]  In other words, the authors wanted to be as inclusive as possible.  The problem of statutory construction the Eighth Circuit confronted in Naylor was created when the definition was deleted in a subsequent revision of the ACCA.  The Supreme Court of the United States issued Mathis to help resolve confusion.
            Missouri’s statute is similar to the one addressed in Mathis, except Iowa lists a broader array of prohibited locations, “any building, structure, [or] land, water, or air vehicle.”[59]  Missouri had a similar list defining inhabitable structure, however it is included in a statute distinct from the burglary law.[60]  If the two Missouri statutes are read in whole, Missouri’s second-degree burglary law is similar to Iowa’s.  An argument could be made that the very segregation between the Missouri burglary statute and the definition of inhabited structure indicates a separation between the “elements” in the burglary law, building or inhabitable structure, and the means, a list of places meeting the criteria of “inhabitable structures.”  The separation itself, however, is not clearly indicative of whether the parts are elements or means.  The ultimate question for the court was whether “building or inhabited structure” constituted one “location” element with two listed means, as the majority contended, or two elements offered in the alternative, as the dissent argued.
            The majority had the stronger argument, leaning on the precedents of State v. Pulis[61] and State v. Washington.[62]  The court argued, convincingly, that the locations listed are means because of the way Missouri courts have lumped them together as one element in the past.[63]  Also, the concurrence to the majority made a salient point about relying too much on jury instructions or charging documents to determine if a portion of a charge is a means or an element, noting that “[e]ither conclusion would make careful inquiry into statutory text and Missouri court decisions irrelevant if an approved instruction merely listed statutory alternatives in parentheses.”[64]  The dissent fell into a seductive trap, arguing that because a selected portion of a charging document must be supported by sufficient evidence, the statutory alternatives must be an element.[65]  However, the majority rightly pointed out that even means must be proven by the same quantum of proof as elements, therefore the inclusion of the statutory alternatives on a jury instruction or charging document is, to a certain extent, irrelevant.[66]
            Ultimately, the vagaries of aligning federal legislation with the myriad of state statutes may be too much given the means/element frame-work established in Mathis.  The ACCA could be amended to provide a definition(s) for burglary, or Missouri could specify which parts of the second-degree burglary statute are elements and means.  As it stands now, not categorizing Missouri second-degree burglaries as violent felonies appears correct per Mathis but against the original intention of the ACCA.
-Chris Mathews

[1] Appellant’s Brief at 1, United States v. Naylor, 887 F.3d 397 (8th Cir. 2018) (No. 16-2047) (2016 WL 3965019).
[2] Id.
[3] United States v. Naylor, 682 F. App’x 511, 513 (8th Cir. 2017) (per curium).
[4] Naylor, 887 F.3d at 399; see also United States v. Sykes, 844 F.3d 712 (8th Cir. 2016).
[5] Naylor, 887 F.3d at 399; Naylor, 682 F. App’x at 512.
[6] Naylor, 682 F. App’x at 512.      
[7] While the ACCA does not define burglary, the Supreme Court provided a working definition.  See infra text accompanying note 22.
[8] Naylor, 682 F. App’x at 513. A divisible statute allows courts to look at what an individual was actually charged with and see if those past convictions match the ACCA.  Id.
[9] Id.
[10] Mathis v. United States, 136 S. Ct. 2243 (2016).
[11] Naylor, 682 F. App’x at 513.
[12] Id.
[13] Id.
[14] Id. at 514.
[15] Id.
[16] Id.  “‘Absent an intervening opinion by a Missouri court’ holding that Missouri’s second-degree burglary statute delineates means rather than elements, we are bound by our holding in Sykes. . . . I therefore concur in the judgment.”  Id.
[17] John Kimpflen, 39 American Jurisprudence 2d § 18 (2018).
[18] 18 U.S.C. § 924(e)(1) (2012). The court is also restricted from suspending the sentence or granting probation. Id.
[19] Id. at § 924(e)(2)(B).
[20] Taylor v. United States, 495 U.S. 575, 592 (1990).
[21] Id. at 599. 
[22] Mo. Rev. Stat. § 569.170(1) (2017).
[23] United States v. Naylor, 887 F.3d 397, 401 (8th Cir. 2018).
[24] United States v. Sykes, 844 F.3d 712 (8th Cir. 2016).
[25] Mathis v. United States, 136 S. Ct. 2243, 2251 (2016).
[26] Id. at 2248 (These are “indivisible statutes,” those not complicated by the disjunctive “or.”).
[27] Id. at 2249.
[28] Id.
[29] Sykes, 844 F.3d at 715.
[30] United States v. Naylor, 887 F.3d 397, 399 (8th Cir. 2018).
[31] Id.
[32] Id. at 400.
[33] Id.
[34] Id.
[35] Id. at 401.
[36] Id. at 402.
[37] Id.
[38] Id. at 403.
[39] Id. at 404.
[40] Id. at 405–06.
[41] Id.
[42] Id.
[43] Id. at 406.
[44] Id. at 406–07.
[45] Id. at 408–13.
[46] Id. at 409 (Loken, J., dissenting).
[47] Id.
[48] Id. (citing Taylor v. United States, 495 U.S. 575, 602 (1990)).
[49] Id.
[50] Id. at 410 (Shepherd, J., dissenting).
[51] Id.
[52] Id. at 411.
[53] Id. at 412–13.
[54] Id. at 412–13.
[55] Taylor v. United States, 495 U.S. 575, 581 (1990).
[56] Id.
[57] Id.
[58] Id. at 582 (quoting S. Rep. No. 98–190, at 20 (1983)).
[59] United States v. Mathis, 136 S. Ct. 2243, 2250 (2016) (citing Iowa Code § 702.12 (2013)).
[60] Mo. Rev. Stat. § 569.010 (1979).
[61] State v. Pulis, 822 S.W.2d 541 (Mo. Ct. App. 1992).
[62] State v. Washington, 92 S.W.3d 205 (Mo.  Ct. App. 2002).
[63] United States v. Naylor, 887 F.3d 397, 402–04 (8th Cir. 2018).
[64] Id. at 408.
[65] Id. at 412.
[66] Id. at 404.