US v Brown & the Categorical Approach: Enter at Your Own Risk

Legend has it that somewhere in the underworld, Sisyphus keeps pushing a boulder up a hill. Every time he summits, he's forced to watch the boulder roll all the way down. Somewhere in Tennessee, David Brown is giving Sisyphus a run for his money. For fourteen years, Brown has litigated a felon-in-possession charge. Every time Brown nudges the boulder close to the apex, one way or another it rolls back down.

Twelve years ago, a jury convicted Brown. Months later, the district court granted Brown's motion for acquittal. No cause for much joy, as the Sixth Circuit eventually reversed and reinstated the conviction.

In 2010, the district court sentenced Brown. Importantly, Brown was tagged as an armed career criminal. Key to the ACCA enhancement: Brown's three convictions for Tennessee's aggravated burglary. At the time, the Sixth Circuit said Tennessee's aggravated burglary qualified as a violent felony. Brown got 15 years plus 5 years supervised release.

Brown served roughly five years. Around then, the en banc Sixth Circuit reversed course on Tennessee's aggravated burglary. See US v. Stitt. After Stitt, Tennessee's aggravated burglary no longer counted as a violent felony, so Brown no longer fit the meaning of an armed career criminal. That meant Brown needed a new sentence. But by then Brown had already served more than he should have without the enhancement (but not the full 15). The district court released him. But not before the government preserved its right to reinstate the 15 years should SCOTUS nix Stitt.

Stitt did not stand for long. Eight months after Brown went home, The Nine unanimously binned Stitt. Upshot: Tennessee's aggravated burglary once again qualified as a violent felony.

And in perhaps the most unjust part of the twisted saga, the government urged the district court to reinstate Brown’s original sentence. The district court went along. Brown went back to prison to finish the 15 years.

This week, in United States v. Brown, the Sixth Circuit affirmed Brown’s (re)resentence.

Judge Murphy wrote for the panel (which included Judges Bush and Suhrheinrich). Whatever your take on the outcome, at the end of the day, most ACCA cases boil down to a judgment call. And Judge Murphy’s judgment call draws on a precise read of SCOTUS precedent tied to a compelling piece of statutory interpretation. So the opinion certainly ticks a lot of boxes, even if, as is often the case with these cases, there is room to disagree.

Because this is an ACCA burglary case, Judge Murphy begins with the categorical approach. The categorical approach grows out of ACCA’s enumerated-offenses clause. ACCA lists a few state offenses that trigger an enhancement to a federal sentence. The list includes burglary. 

But what qualifies as a burglary sufficient to trigger ACCA’s enhancement? Fifty state burglary statutes make for quite the variety. How do we know which ones are violent felonies and which ones aren't? Faced with that question, SCOTUS says when Congress put burglary in ACCA, they meant burglary as it existed at common law: an unlawful breaking and entering of a dwelling at night.

To see if a particular burglary statute qualifies under ACCA’s, lower courts need to compare the elements of the burglary statute against the elements of its common law ancestor. If the burglary statute’s elements sweep more broadly than the elements at common law, then, categorically speaking, none of the convictions under the state’s burglary statute qualify as ACCA predicates.

At first blush, comparing a statute’s elements to common law elements seems straightforward. But is it? Hard to say. As we will see, common law burglary amounts to a nebulous baseline. Agreeing on its common-law elements takes some work. Even more, those 50 state statutes sure run the gamut. Lastly, state legislatures don’t just go around clearly demarcating the elements of state offenses in order to ease the burden on federal judges.  

So why not just focus on the facts of the offense? If in fact the commission of the crime involved the use, attempted use, or threatened use of violent force, then you have a violent felony.

Not so fast. The Sixth Amendment stands in the way. Sure, federal judges can find the fact of a prior conviction. But federal judges cannot find the facts used to enhance a sentence. An example helps. Imagine someone somewhere pleaded guilty to burglary. Twenty years pass and now that someone faces an ACCA enhancement if that old burglary qualifies as a violent felony. If we toss out the categorical approach, we need to know why somewhere charged someone with burglary. Assuming somewhere kept the file, what’s in it? Enough to gets the facts straight? Maybe. Maybe the file has a plea colloquy in it. Or maybe a chunk of the police report. Is that enough? Worse, what if the file is just gone? Point is, the federal judge cannot, under current law, find the facts of the prior state offense. So will the federal judge have to hold a mini-trial to find the facts that gave rise to the 20-year-old guilty plea for burglary? Or, worse, does the Sixth Amendment need a bigger exception to allow judges to find those facts when making ACCA enhancements?

End of the day, not a lot of good answers here. And Judge Murphy's opinion acknowledges as much.

The real gem here is Brown’s argument and Judge Murphy’s treatment of it. Brown says Tennessee’s aggravated burglary is categorically not a violent felony. Brown points to language in Tennessee’s statute that includes burglaries where the only entry is made by the tool used to break in. Brown says at common law, that entry-by-tool would not be a burglary. Recall that common law penalized an unlawful breaking and entering. Brown found a few common-law chestnuts reasoning that an entry by tool only qualifies as a burglary if the tool was then used to steal something inside.

Again, an example helps. Say you use a crowbar to pry open a door and then use the crowbar to hook some jewels near the door. Bingo, you have a common law burglary. By contrast, what if you use the crowbar to break in but get caught before you enter? According to Brown’s common-law sources, that’s an attempted burglary in 19th Century London. But 21st Century Tennessee makes that a burglary. So Brown says Tennessee’s aggravated burglary sweeps in more conduct than common law burglary, meaning it is not a violent felony under ACCA.

Judge Murphy rejects Brown’s argument. He notes that the state caselaw is no help, probably because of the precision of Brown’s argument. So he leans on a close read of SCOTUS precedent and statutory interpretation.

Take the precedent first. Murphy acknowledges that SCOTUS says ACCA burglary means common law burglary. But Murphy adds that SCOTUS did so to underscore inclusion of violent felonies, not to invite federal judges down common law rabbit holes. Hence Judge Murphy distills the operating principle: burglary is in the statute because it can lead to violence, violence occurs when an unwanted intruder enters the home, and of all the elements, entry, even at common law, was easiest to satisfy. If even a finger crossed the threshold, then burglary. So when put in the context of precedent, Brown's entry-by-tool distinction does not mean all that much.

Judge Murphy’s read of precedent dovetails with his statutory interpretation. Judge Murphy rightly notes ACCA’s purpose is to enhance the sentences for violent offenders. And Congress thought violence went hand in glove with burglary. Here, Judge Murphy says Brown’s argument cuts against the grain. Brown's argument shields the crowbar-wielding-would-be burglar but not the actual burglar who merely inches a finger past the threshold. Judge Murphy rhetorically asks which burglar is more violent?  Moreover, Judge Murphy notes Congress intended ACCA to apply nationwide. But Brown's argument stands to defeat ACCA’s application to at least some states. 

All told, Judge Murphy worries that Brown’s argument puts a wrench in ACCA's chain. Said more formally, Judge Murphy refuses to interpret a statute in a way that defeats its intended purpose and application. That makes sense.

To be sure, there is room to see this differently. For one, Judge Murphy’s opinion does not seem to apply the categorical approach as outlined in Descamps. Where in the opinion does the panel line up the common-law elements against the statutory elements? If anything, when Judge Murphy engages in the hypothetical about which burglar you find more violent, he seems to indulge a peak at a fact-based approach. In any event, if you apply the categorical approach outlined in Descamps, there is an argument for Brown winning. But Brown loses. And he seems to lose because Judge Murphy worries that a win for Brown is a loss for a minority of states' burglary statutes. Yet Stitt suggests that's ok. Really confusing.

But on the whole Judge Murphy has a point. Brown’s argument showcases a dilemma. Is there a definitive common-law text on the elements of a burglary, and, if so, what are the elements? Plus, why are diving down 19th century rabbit holes to make 21st century criminal law? Like it or leave it, Judge Murphy offers a way out. Ask what Congress intended and see how SCOTUS treat the language. In other words, find the rule of law and try to stick to it. Is that fundamentally a judgment call, sure, but this judgment call flows from statutory purpose and a close read of precedent. Hard to argue with that.

In the end, Brown loses. And it’s crazy. But not because of the opinion. I looked at the docket and in the eight months he was out there is no evidence that Brown violated his supervised release. So why send him back, government? If someone spends eight months free and doesn’t violate, then why more prison? Brown reached the ultimate apex: rehabilitation and reintegration. And yet, the government pushed him back down the hill.