United States v. Ritchey

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: SILER, Circuit Judge.
• Citation: United States v. Ritchey, 840 F.3d 310 (6th Cir. 2016)
• Decision Date: 26 October 2016
• Docket Number: No. 15-2460,15-2460
• Parties: United States of America, Plaintiff–Appellee, v. Christopher Todd Ritchey, Defendant–Appellant.

840 F.3d 310

United States of America, Plaintiff–Appellee,

v.Christopher Todd Ritchey, Defendant–Appellant.

No. 15-2460

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2016

Decided and Filed: October 26, 2016

ARGUED: Paul L. Nelson, Office of the Federal Public Defender, Grand Rapids, Michigan, for Appellant. Justin M. Presant, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, Office of the Federal Public Defender, Grand Rapids, Michigan, for Appellant. Justin M. Presant, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

Before: SILER, GIBBONS, and KETHLEDGE, Circuit Judges.

OPINION

SILER, Circuit Judge.

Christopher Ritchey appeals his sentence of fifteen years in prison pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on several prior convictions of a Michigan breaking and entering statute, Mich. Comp. Laws § 750.110. This appeal requires us to address the Supreme Court's recent decision in Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Specifically, we must determine whether, in light of Mathis, a conviction under § 750.110 can qualify as a predicate “violent felony” under ACCA. Because the statute's terms are broader than generic burglary, and it is not divisible under Mathis, we VACATE Ritchey's sentence and REMAND for resentencing without an ACCA enhancement.

I.

While he was on parole under the supervision of the Michigan Department of Corrections in 2015, a complaint was filed against Ritchey, alleging that he threatened to kill another individual. A parole officer visited Ritchey's home and found a handgun therein.

Ritchey was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and for possessing a stolen firearm, in violation of 18 U.S.C. § 922(j). He pleaded guilty to being a felon in possession of a firearm in exchange for the Government's dismissal of the stolen firearm charge.

The presentence report (“PSR”) identified at least six prior convictions Ritchey had for breaking and entering a building with the intent to commit a felony or larceny therein, a felony under Michigan law. See Mich. Comp. Laws § 750.110. According to the PSR, each of these convictions qualified as a “violent felony” under ACCA.

The PSR calculated Ritchey's base offense level at 14 under USSG § 2K2.1(a)(6)(A). After a 2–level stolen-firearm enhancement under § 2K2.1(b)(4)(A), Ritchey's adjusted offense level was 16. Because the PSR identified Ritchey as an armed career criminal under ACCA, however, it substituted 33 for the adjusted offense level pursuant to § 4B1.4. Applying a three-level reduction for acceptance of responsibility, the PSR calculated Ritchey's total offense level as 30. The PSR also assigned Ritchey a subtotal criminal history score of 17 based on his prior convictions and applied a 2–point adjustment under § 4A1.1(d) because Ritchey committed the offense of conviction while under a criminal justice sentence. Accordingly, Ritchey's total criminal history score was 19, placing him in Criminal History Category VI. Applying the ACCA-specific provisions of § 4B1.4(c), Ritchey still fell within Criminal History Category VI.

Based on an offense level of 33 and Criminal History Category VI, Ritchey's Guidelines sentencing range was 168 to 210 months of imprisonment. ACCA, however, contains a mandatory minimum sentence of 15 years, so the Guidelines range became 180 to 210 months under § 5G1.1(c)(2).

Ritchey objected to the application of ACCA. According to him, the prior breaking and entering convictions did not qualify as “violent felonies” because § 750.110 does not fit the definition of a “generic burglary” under Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The United States argued that, while § 750.110 is broader than a “generic burglary,” the statute is divisible. Therefore, according to the Government, the sentencing court should use Shepard documents to determine whether Ritchey committed a generic burglary under the modified categorical approach. The Government provided felony informations for Ritchey's prior § 750.110 offenses to demonstrate that he “broke into and entered a building or structure: a barn, a garage, or a store.”

The district court found that “the Michigan statute arguably includes some things that would qualify as generic burglary and arguably some things that don't,” such as breaking and entering a tent. Applying the modified categorical approach, the court concluded that

from the documents that the [G]overnment has attached to its brief, there are definitely at least three, probably more than three, as many as six separate breaking and enterings ... of a building with intent. And the building is described specifically in one case as a store and in a number of other cases as a garage of one form or another. All of which ... would qualify as a structure, as a building within the Supreme Court's generic definition of a burglary.

Ultimately, the court sentenced Ritchey to the mandatory minimum under ACCA: fifteen years or 180 months.

II.

At the outset, Ritchey and the Government disagree on the appropriate standard of review. Ritchey maintains that de novo review should apply to the district court's determination that his § 750.110 offenses qualified as ACCA predicates. See United States v. Mitchell , 743 F.3d 1054, 1058 (6th Cir.), cert. denied , ––– U.S. ––––, 135 S.Ct. 158, 190 L.Ed.2d 115 (2014). The United States, on the other hand, suggests that the district court's application of ACCA should be reviewed for plain error because “Ritchey has waived the issue of the sufficiency of the Government's proofs regarding his prior convictions.” We need not resolve this dispute because reversal is warranted even under plain-error review.

To satisfy plain-error review, there must be “(1) error that (2) was plain, (3) affected [the defendant's] substantial rights, and (4) seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” United States v. Church , 823 F.3d 351, 362 (6th Cir. 2016) (quoting United States v. Ushery , 785 F.3d 210, 218 (6th Cir. 2015) ). Whether an error was “plain” is determined based on the state of the law “at the time of appellate consideration” rather than at the time of the district court's decision. Henderson v. United States , ––– U.S. ––––, 133 S.Ct. 1121, 1130, 185 L.Ed.2d 85 (2013) (quoting Johnson v. United States , 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ); see also United States v. Henry , 797 F.3d 371, 375 (6th Cir. 2015).

III.

Under ACCA, a defendant who violates 18 U.S.C. § 922(g) is subject to a fifteen-year mandatory minimum sentence if he “has three previous convictions by any court” for “a crime punishable by imprisonment for a term exceeding one year” and those convictions constituted “violent felon[ies] or ... serious drug offense[s], or both, committed on occasions different from one another.” 18 U.S.C. §§ 924(e)(1), 922(g)(1). ACCA defines a “violent felony” as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). At issue in this case is whether Ritchey's prior convictions for violating § 750.110 constitute “burglar[ies]” such that they qualify as predicate convictions for ACCA purposes. See 18 U.S.C. § 924(e)(2)(B).

A.

Whether a crime constitutes a “burglary” does not solely “depend on the definition adopted by the State of conviction.” Taylor v. United States , 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Nor, however, are predicate offenses limited to those falling within the common-law definition of “burglary”—“a breaking and entering of a dwelling at night, with intent to commit a felony.” Id. at 592–94, 110 S.Ct. 2143. Rather, the Supreme Court adopted “the generic, contemporary meaning of burglary,” which includes “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 (citing Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 8.13(a), (c), (e) (1986) ).

The Court indicated that a statute that encompasses vehicles, vending machines, tents, boats, railroad cars, or other places that are not “buildings,” criminalizes conduct broader than the generic meaning of burglary. Id. at 599, 110 S.Ct. 2143. In relevant part, § 750.110 states that

[a] person who breaks and enters, with intent to commit a felony or a larceny therein, a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not more than 10 years.

Mich. Comp. Laws § 750.110(1). The parties agree that this statute encompasses conduct beyond generic burglary.¹

But the fact that a statute is broader than generic burglary is not the end of the inquiry. The Court has adopted a modified categorical approach in determining whether a prior conviction qualified as a burglary under ACCA, “generally requir[ing] the trial court to look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143 ; see alsoDescamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283–84, 186 L.Ed.2d 438 (2013). Sentencing court...