Choosing to punt on yet another Johnson question

For those of you preparing Johnson motions involving burglaries and burglary-like offenses, today's opinion in United States v. Quarles might help you. Or it might not. We can't know. The Sixth Circuit vacated an ACCA sentence based on a Michigan third-degree home invasion conviction under, Mich. Comp. Laws § 750.11a(4)(a), but it decided to punt on whether that offense constitutes a "generic" form of burglary, instead deciding that "this issue is best determined in the first instance by the sentencing court."

If you're playing along at home with the Johnson "is a burglary a violent felony" game, you might be curious about the Michigan statute in question. It defines third-degree home invasion as when someone "[b]reaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor." The statute defines a "dwelling" as "a structure or shelter that is used permanently or temporarily as a place of abode, including an appurtenant structure attached to that structure or shelter."

So if your client entered his neighbor's yurt uninvited with the intention of singing a "nontraditional" version of the Star Spangled Banner (yes, a misdemeanor in Michigan), then Quarles will not tell you whether your client is going to stay in prison for 15 years, but you still have hope.