6th Circuit Says a Building is a Building, Not a “Building”

Today, the Sixth Circuit added yet another case to the Federal Reporter that parses the language of a state statute to determine if it describes a “violent felony” under the Armed Career Criminal Act. The court could not hide its exasperation with these sorts of issues, commenting that Jimmy David Malone’s “appeal presents the latest episode in the saga of determining whether a prior conviction is a ‘violent felony.’” Tiresome as the litigation may be, the answers to these questions matter to people like Mr. Malone, whose must serve no fewer than 15 years in prison if the court says their prior conviction is a violent felony.

Kentuckian Jimmy Malone argued that his second-degree burglary was not a violent felony. The Sixth Circuit decided today that Kentucky’s second-degree burglary statute defines a violent felony, while Tennessean Victor Stitt, who also committed a burglary, is free of the 15-year minimum (for now).

The Kentucky second-degree burglary statute starts off simply: “A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.” Ky. Rev. Stat § 511.030(1). But the statute has a few definitions that complicate matters. Section 511.010 expands the meaning of “building” to include “any structure, vehicle or aircraft: (a) where any person lives; or (b) where people assemble for purposes of business, government, education, religion, entertainment or public transportation.” The statute also defines “dwelling” to mean “a building which is usually occupied by a person lodging therein,” and “premises” to mean “the term ‘building’ as defined herein and any real property.”

The question for Sixth Circuit was whether a dwelling means a building where someone lives or a “building” where someone lives, which could include a vehicle or boat. For now, Stitt says that burglaries of vehicles or boats designed for human habitation are non-generic for purposes of the ACCA. But the Sixth Circuit concluded that Kentucky legislators acted intentionally when they referenced a “building” in the definition of the term “premises,” but omitted the quotation marks in the definition of a dwelling. And so, Kentucky’s second-degree burglary statute is generic, and Mr. Malone is an armed career criminal.

Never have quotation marks mattered so much.