United States v. Robinson

• Decision Date: 20 October 2016
• Docket Number: No. 4:08CR00141 JLH,4:08CR00141 JLH
• Citation: 221 F.Supp.3d 1088
• Parties: UNITED STATES of America, Plaintiff v. Leon ROBINSON, Jr., Defendant
• Court: U.S. District Court — Eastern District of Arkansas

221 F.Supp.3d 1088

UNITED STATES of America, Plaintiff

v.Leon ROBINSON, Jr., Defendant

No. 4:08CR00141 JLH

United States District Court, E.D. Arkansas, Western Division.

Signed October 20, 2016

Joseph James Volpe, U. S. Attorney's Office, Little Rock, AR, for Plaintiff.

OPINION AND ORDER

J.LEON HOLMES, UNITED STATES DISTRICT JUDGE

In 2009, a jury convicted Leon Robinson of the crime of felon in possession of a firearm.18 U.S.C. § 922(g).This Court found that Robinson had at least three prior convictions for violent felonies as defined under the Armed Career Criminal Act and sentenced him to the statutory minimum of fifteen years.Robinson's prior convictions included one for aggravated assault and several for residential burglary.Robinson's presentence report shows that Robinson had been convicted of twelve counts of residential burglary in four different Arkansas cases.Robinson brings this 28 U.S.C. § 2255motion to correct his sentence, arguing that his prior convictions under Arkansas's burglary statute do not count as predicate offenses.

A conviction under 18 U.S.C. § 922(g) carries a statutory maximum of ten years' imprisonment.18 U.S.C. § 924(a)(2).If a person convicted of violating section 922(g) has three previous convictions for violent felonies, however, the statutory minimum is fifteen years' imprisonment.18 U.S.C. § 924(e)(1).The statute defines violent felony as "any crime punishable by imprisonment for a term exceeding one year" 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).The "otherwise involves" clause of prong two has been labeled the "residual clause."In Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569(2015), the Supreme Court held that the residual clause is unconstitutionally vague, so a prior conviction can no longer count as a predicate offense under the that clause.In Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387(2016), the Supreme Court made Johnson retroactive to cases on collateral review.

This Court sentenced Robinson before the Supreme Court decided Johnson .In light of Johnson and Welch , Robinson filed the instant section 2255motion to correct his sentence.Although Robinson had previously filed a section 2255 motion, the Eighth Circuit authorized him to file a second or successive petition.Because the residual clause has been declared unconstitutional, Robinson reasons that his Arkansas burglary convictions can count as violent felonies only if they meet the definition of "generic" burglary as used in section 924(e)(2)(B), and he argues that they do not.

More than thirty years ago, the Supreme Court determined that Congress used the term burglary in section 924(e)(2)(B) broadly and generically with certain minimum elements.Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607(1990).How a state labels the crime is immaterial.Id. at 599, 110 S.Ct. at 2158.A person has been convicted of burglary, as that term is used in section 924(e)(2)(B), "if he is convicted of any crime ... having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime."Id.Importantly, the Supreme Court rejected narrower proposed definitions that would have limited burglary to the common-law definition or to a subclass of especially dangerous burglaries.Id. at 595–97, 110 S.Ct. at 2155–58.The Supreme Court noted that most states had departed from the technicalities of the common-law definition of burglary, expanding burglary "to include entry without a ‘breaking,’ structures other than dwellings, offenses committed in the daytime, entry with intent to commit a crime other than a felony, etc."Id. at 593, 110 S.Ct. at 2155(citingWayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law§ 8.13(1986) ).In addition, the Supreme Court noted that construing burglary broadly and generically was in line with the purpose of the Armed Career Criminal Act to control violent crime regardless of its state label.Id. at 593–94, 110 S.Ct. at 2155–56.The Court construed the term burglary in the statute to roughly correspond to "a majority of the States' criminal codes."Id. at 589, 110 S.Ct. at 2153(citation omitted).

To determine whether a prior conviction is for burglary, courts use the "categorical approach."SeeDescamps v. United States , –––U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438(2013).They compare the elements of the statute of conviction with the elements of "generic" burglary under section 924(e)(2)(B).Id.The prior conviction qualifies as burglary under the statute and thus as a predicate offense for enhancement purposes only if the statestatute's elements are the same as, or narrower than, those of generic burglary.Id.

Since 1993, Arkansas's burglary statute has distinguished between residential and commercial burglary.¹All of Robinson's burglary convictions were for residential burglary."A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment."Ark. Code Ann. § 5–39–201(a).Arkansas defines "residential occupiable structure" to mean "a vehicle, building, or other structure: (i) In which any person lives; or (ii) That is customarily used for overnight accommodation of a person whether or not a person is actually present."Ark. Code Ann. § 5–39–101(4)(A).Arkansas further defines "vehicle" as "any craft or device designed for the transportation of a person or property across land or water or through the air."Ark. Code Ann. § 5–39–101(5).Arkansas defines "enter or remain unlawfully" to include entering on unimproved and apparently unused land when notice has been personally communicated or is posted conspicuously.Ark. Code Ann. § 5–39–101(2)(C).

Relying on Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604(2016), Robinson maintains that Arkansas's residential burglary statute is not divisible.As a result, Robinson contends that the Court must apply the categorical approach to determine whether his prior convictions are predicate offenses that subject him to the Armed Career Criminal Act's enhancement.On this note, Robinson argues that Arkansas's burglary statute is categorically broader than the generic definition of burglary in two ways.First, the statute"identifies unimproved and apparently unused land as places that may be ... burglarized."Document #116at 8.And second, the term residential occupiable structure includes vehicles.Id.

Robinson is correct that Arkansas's residential burglary statute is not divisible and therefore the modified categorical approach does not apply.Although the definition of "residential occupiable structure" contains the disjunctive "or" and contains certain terms, such as "building" and "other structure," that meet the generic definition of burglary, these alternative terms do not set forth different elements of the crime.Mathis , 136 S.Ct. at 2256.Rather, they state alternative means by which the locational element—residential occupiable structure—is satisfied.Id.And so Robinson's convictions must meet the generic definition of burglary under the categorical approach if they are to count as predicate offenses.

Robinson first argues that residential burglary in Arkansas is broader than generic burglary because of the definition of "enter or remain unlawfully."True, the statute defines "enter or remain unlawfully" to include unimproved or apparently unused land; but Robinson errs by reading the isolated definition as though it were the statute of conviction.The residential burglary statute has a single locational element: residential occupiable structure.A residential occupiable structure only includes vehicles, buildings, or other structures and must either be lived in or customarily used for overnight accommodations.This definition unambiguously excludes unimproved and apparently unused land as places that may be burglarized under the residential burglary statute.

Robinson's second argument is much closer.Based on language from several Supreme Court decisions, Robinson argues that statutes that include vehicles as places that can be burglarized are categorically broader than generic burglary.SeeMathis , 136 S.Ct. at 2250(holding that Iowa's burglary statute"defines one crime, with one set of elements, broader than generic burglary—while specifying multiple means of fulfilling its locational element, some but not all of which (i.e. , buildings and other structures, but not vehicles) satisfy the generic definition");Descamps , 133 S.Ct. at 2284(restating Taylor's hypothetical burglary statute with alternative elements requiring the modified categorical approach where "[o]ne of those alternatives (a building) corresponds to an element in generic burglary, whereas the other (an automobile) does not");Shepard v. United States , 544 U.S. 13, 15–16, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205(2005)(reciting pithily that the Armed Career Criminal Act"makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle");Taylor , 495 U.S. at 599, 110 S.Ct. at 2158(noting that a few states' burglary statutes define burglary more broadly than generic burglary "by including places, such as automobiles and vending machines, other than buildings").

The Ninth Circuit has adopted a view similar to Robinson's.In a split decision of the en banc court interpreting Oregon's burglary statute,² the Ninth Circuit held that Taylor used the term ...