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.
