Eleventh Circuit Determines Conviction Under Alabama’s Third-Degree Burglary Statute Cannot Qualify as Generic Burglary Under ACCA

In United States v. Howard, No. 12-15756 (Feb. 19, 2014), the Eleventh Circuit reconsidered its prior determination that Alabama’s third-degree burglary statute can qualify as a “violent felony” under the Armed Career Criminal Act (“ACCA”). Howard was arrested and charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and his previous criminal record, including a conviction for third-degree burglary, qualified him for an armed career criminal enhancement under the ACAA. Howard contended that the district court erred in imposing the ACAA enhancement, because Alabama’s third-degree burglary statue is a non-generic, indivisible statute.

The Supreme Court has held that “burglary” under the ACAA is defined using the generic, contemporary meaning of burglary. The Supreme Court has developed two methods for determining whether a prior conviction meets the generic definition of burglary: the categorical approach and the modified categorical approach. When applying the categorical approach, courts must look only to the statutory definitions of the prior offenses. The modified categorical approach is less limited, because it allows courts to look to Shepard documents to determine whether the prior conviction involved a determination that the defendant was guilty of each of the elements of the generic ACCA offense.

Previously, in United States v. Ranier, 616 F.3d 1212 (11th Cir. 2010), the Eleventh Circuit applied the modified categorical approach to determine whether a defendant’s third-degree burglary convictions counted as ACCA predicates. However, in 2013 the Supreme Court in United States v. Descamps, 133 S. Ct. 2276 (2013), held that the modified categorical approach can only be applied when the non-generic statute is a “divisible” statute, which is one that sets out one or more elements of the offense in the alternative. Thus, two crucial aspects of the Eleventh Circuit’s decision in Rainer are no longer tenable after Descamps: (1) the assumption that the modified categorical approach can be applied to any non-generic statute; and (2) the determination that when applying the modified categorical approach courts can focus on the facts of the crime in question. Instead, Descamps clarified that the modified categorical approach should focus on the elements of the crime and can only be applied to divisible statutes.

Ultimately, the Howard court applied the Descamps decision and held that the Alabama third-degree burglary statute was non-generic and indivisible, which means that a conviction cannot qualify as generic burglary under the ACCA. Howard’s conviction was affirmed and his sentence was vacated and remanded for resentencing without the ACCA enhancement.

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