United States v. Henriquez

• Decision Date: 27 June 2014
• Docket Number: No. 13–4238.,13–4238.
• Citation: 757 F.3d 144
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Herbert HENRIQUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

757 F.3d 144

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Herbert HENRIQUEZ, Defendant–Appellant.

No. 13–4238.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 28, 2014.

Decided: June 27, 2014.

ARGUED:Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Kelly O. Hayes, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF:James Wyda, Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge WYNN wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge MOTZ wrote a dissenting opinion.

WYNN, Circuit Judge:

Under the United States Sentencing Guidelines, judges may increase the sentencesof defendants previously convicted of violent crimes. Generic burglary has been deemed a crime of violence sufficient to support such an enhanced sentence. At issue in this case is whether first degree burglary in Maryland constitutes a generic burglary, i.e., a crime of violence that can support a sentence enhancement under United States Sentencing Guidelines Section 2L1.2(b)(1)(A)(ii). Our careful review leads us to conclude that it does not. We hold that Maryland's courts have construed Maryland's first degree burglary statute more broadly than the Supreme Court's definition of generic burglary. Specifically, there is a realistic probability that Maryland's statute covers burglaries of motor vehicles or boats-places that the United States Supreme Court has expressly excluded from generic burglary. Accordingly, we vacate Defendant's sentence, which the district court enhanced based on Defendant's prior conviction of first degree burglary in Maryland, and remand for resentencing.

I.

Jose Herbert Henriquez (“Defendant”) pled guilty without a plea agreement to one count of unlawfully reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). His adjusted offense level was calculated to be 24, which consisted of a base offense level of 8, plus a 16–level enhancement under United States Sentencing Guidelines (“U.S.S.G.”) Section 2L1.2(b)(1)(A)(ii). The offense that triggered the 16–level enhancement was Defendant's 2000 Maryland conviction of first degree burglary, which the presentence report (“PSR”) called a crime of violence. Over Defendant's objection, the district court applied the enhancement and sentenced Defendant to 41 months of imprisonment.¹

In explaining its decision to apply the enhancement, the district court noted that U.S.S.G. Section 2L1.2(b)(1) “says burglary of a dwelling[,]” and that the Maryland statute “is four square within the language of the applicable Guideline Section 2L1.2 as ‘burglary of a dwelling.’ ” J.A. 80–81. The district court also explained that “Maryland retains the more traditional” definition of burglary and “has not chosen to expand it to any old structure.” J.A. 80.

Defendant filed a timely appeal and raises the same argument that he made below: that a conviction of first degree burglary in Maryland is not a crime of violence because Maryland's definition of burglary exceeds the scope of generic burglary as defined by the United States Supreme Court. Specifically, Defendant argues that first degree burglary in Maryland lacks a necessary element of generic burglary-that the crime take place in a building or structure. Defendant contends that because Maryland has not limited the term “dwelling” to buildings or structures, one could be convicted in Maryland of burglarizing boats or motor vehicles, which are enclosures that the Supreme Court has expressly excluded from the definition of generic burglary. Upon careful review, we must agree with Defendant.

II.

A defendant convicted of illegally reentering the United States is subject to a sentencing enhancement if, before his removal, he had been convicted of a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines definition of “crime of violence” specifically includes “burglary of a dwelling.” U.S.S.G. § 2L1.2 (b)(1)(A) cmt. n. 1 (B)(iii). Whether a prior conviction qualifies as a crime of violence is a legal question that we review de novo. United States v. Bonilla, 687 F.3d 188, 190 (4th Cir.2012), cert. denied, ––– U.S. ––––, 134 S.Ct. 52, 187 L.Ed.2d 47 (2013).

A.

In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court considered whether “burglary” constituted a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). ² The Supreme Court sought to tease out “some uniform definition independent of the labels employed by the various States' criminal codes.” Taylor, 495 U.S. at 592, 110 S.Ct. 2143. The Court held that “[a]lthough the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Id. at 598, 110 S.Ct. 2143. The Supreme Court noted that “there is no problem” for convictions in states whose definitions of burglary are the same as—or narrower than—this generic definition. Id. at 599, 110 S.Ct. 2143. But the same could not be said of states that “define burglary more broadly, e.g., ... by including places, such as automobiles[,]” i.e., places “other than buildings.” Id.

Fifteen years later, the Supreme Court stated even more clearly that the ACCA “makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.” Shepard v. United States, 544 U.S. 13, 15–16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Although Taylor and Shepard both involved the ACCA's enumerated crime of “burglary,” rather than the Guidelines' enumerated crime of “burglary of a dwelling” at issue here, this Court has nonetheless applied Taylor's definition of generic burglary to the Guidelines' inquiry, “with the additional requirement that a burglary qualifying as a ‘crime of violence’ must involve a dwelling.” Bonilla, 687 F.3d at 190–91 n. 3 (citing, inter alia, United States v. Wenner, 351 F.3d 969, 973 (9th Cir.2003) (“[T]he most logical and sensible reading of the Guidelines ... is to construe ‘burglary of a dwelling’ as the Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling[.]”)). Thus, before applying the enhancement in U.S.S.G. Section 2L1.2(b)(1)(A)(ii) to a defendant who previously had been convicted of burglary, a sentencing court must satisfy itself that the defendant's prior burglary conviction entailed the “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598, 110 S.Ct. 2143. The sentencing court also must ensure that the burglary occurred in a dwelling, Bonilla, 687 F.3d at 190 n. 3, and that the dwelling was not a boat, motor vehicle, or other enclosure that is excluded from the definition of generic burglary, Shepard, 544 U.S. at 16, 125 S.Ct. 1254.

Further, we employ the categorical approach here because “the crime of which the defendant was convicted has a single, indivisible set of elements.” Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2282, 186 L.Ed.2d 438 (2013). Our analysis is thus “restricted to ‘the fact of conviction and the statutory definition of the prior offense.’ ” United States v. Aparicio–Soria, 740 F.3d 152, 154 (4th Cir.2014) (en banc) (quoting Taylor, 495 U.S. at 603, 110 S.Ct. 2143).

Finally, federal courts have no “authority to place a construction on a state statute different from the one rendered by the highest court of the State.” Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997). Rather, “[t]o the extent that the statutory definition of the prior offense has been interpreted by the state's highest court, that interpretation constrains our analysis of the elements of state law.” Aparicio–Soria, 740 F.3d at 154. With this legal framework in mind, we now turn to the text of Maryland's first degree burglary statute and the way in which the Maryland Court of Appeals has interpreted it.

B.

Section 6–202 of Maryland's criminal code provides that “[a] person may not break and enter the dwelling of another with the intent to commit theft or a crime of violence.” Md.Code Ann., Crim. Law § 6–202(a). The statute does not define the term “dwelling,” and it was not until 2008 that the Maryland Court of Appeals, Maryland's highest court, considered “precisely what is meant by a ‘dwelling[.]’ ” McKenzie v. State, 407 Md. 120, 962 A.2d 998, 1001 (2008). After determining that “the General Assembly intended the meaning of ‘dwelling,’ insofar as the burglary statutes are concerned, to be subject to ongoing clarification in the case law[,]” id. at 1002, Maryland's high court reviewed opinions by the intermediate court, the Maryland Court of Special Appeals, id. at 1003–07.

The Court of Appeals explained that the intermediate court had developed the following test for determining whether a place was a dwelling under Maryland's burglary statutes:

“The test as to whether or not a building is a dwelling house is whether or not it is used regularly as a place to sleep. No building becomes a dwelling by reason of the fact that someone may sleep there on rare occasions or take an occasional nap there[.]”

Id. at 1003 (quoting Poff v. State, 4 Md.App. 186, 241 A.2d 898, 900 (1968)) (internal quotation marks omitted). The Court of Appeals described how the intermediate court applied that test in 1983 to hold that a recreational vehicle was a dwelling under Maryland's daytime housebreaking statute, and it recounted the intermediate court's explanation:

[T]he “crucial...