Eleventh Circuit Finds Conviction Under Alabama Burglary Statute Fails to Qualify for ACCA Generic Burglary Enhancement

In United States v. Howard, No. 12-15756 (Feb. 19, 2014), the Eleventh Circuit revisited the earlier decision of United State v. Ranier, 616 F.3d 1212 (11th Cir. 2010) in light of the recent Supreme Court decision of Descamps v. United States, 133 S.Ct. 2276 (2013). In Ranier, when the court decided that third-degree burglary convictions in Alabama can qualify as Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), predicates, the Eleventh Circuit believed that a modified categorical approach could apply to prior convictions for violating any non-generic statute (See Ranier 616 F.3d at 1215-16). In Descamps, on the other hand, the Supreme Court decided that the modified categorical approach is only applicable 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” (See Descamps 133 S.Ct. at 2281-82).

In the present case, the Eleventh Circuit decided if a defendant’s conviction could stand with ACCA enhancement after the Descamps decision, which would require that Alabama’s third-degree burglary statute be both non-generic and divisible. First, the court determined that Alabama’s third-degree burglary statute is a non-generic statute. Although both an ACCA generic burglary and a third-degree burglary under Alabama Code § 13A-7-1(2) include the element of unlawful entrance into a building, the statutory term of “building” under the Alabama Code included certain terms within the definition that fall outside of the simple “building or structure” element of generic burglary. Next, the Eleventh Circuit determined that Alabama’s non-generic third-degree burglary statute was indivisible. This determination rested on the fact that the statute does not set out one or more elements of the offense in the alternative (See Descamps 133 S.Ct. at 2281-82). Alabama Code § 13A-7-1(2) provides one definition of “building” and includes a non-exhaustive list of examples that fall under the definition. Although there is an illustrative list within the definition, in light of the Descamps decision, illustrative examples do not qualify as alternative elements. Thus, the Alabama third-degree burglary statute is both non-generic and indivisible; therefore, a conviction under Alabama Code § 13A-7-1(2) cannot qualify as generic burglary under the ACCA.

Ultimately, the defendant’s conviction was confirmed, but the Eleventh Circuit vacated his sentence and remanded for resentencing without ACCA enhancement.

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