Wednesday, October 26, 2016

Michigan breaking and entering is not "burglary" under the ACCA

Great win for AFPD Paul Nelson out of the Western District of Michigan!!

United States v. Ritchey, 15-2460

The Court has held that Michigan's breaking and entering statute, Mich. Comp. Laws § 750.110, is broader than the generic definition of burglary.  Further, because it had a broader definition of "building", which included means of committing the offense, it could never qualify as an enumerated burglary offense.  Thus, Ritchey's 180 month sentence was unconstitutional.

Also important was the Court's ruling that Ritchey did not waive his claims.  The Government on appeal argued that because Ritchey agreed, at his plea hearing, that his priors qualified under the ACCA, he had waived the argument for appeal.  But the Court found "regardless of whether he
conceded this point, Ritchey could not have waived or intentionally relinquished an argument
based on Mathis because the case was decided after his sentencing."


DJP said...

There doesn't seem to be any discussion of the elements clause here. Presumably, an offense that is broader than an enumerated offense (here, burglary) could nevertheless be a predicate offense under the elements clause. Does anyone know if there a succinct discussion of this issue somewhere?

Anonymous said...

I'm confused about your question...all that's left post Johnson is the enumerated offense clause and the use of force clause...the burglary statute in question (like most) does not involve the use of force, so it could only qualify as an enumerated offense, which the Court found it could not.

DJP said...

You've assumed the answer to my question and used it as a premise. However, nowhere in Richey does the panel ever state that the burglary statute does not satisfy the elements (or "use of force") clause. Even if it's as obvious as you say, it's bizarre to me that they did not even mention it. Other cases analyzing whether a statute aligns with one of the enumerated offenses similarly do not discuss the elements/use-of-force clause. This seems significant to me.

Anonymous said...

Significant in what way, though? Are you saying that an argument can be made that such a statute could ever fall under the use of force clause? If you are not, what makes this panel's choice to not address the use of force clause significant?