United States v. Yerkes, No. 19-5768

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtGRIFFIN, Circuit Judge
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee, v. LEE YERKES, Defendant-Appellant.
Docket NumberNo. 19-5768
Decision Date10 July 2020

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
LEE YERKES, Defendant-Appellant.

No. 19-5768

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

July 10, 2020


NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0398n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: MOORE, SUTTON, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge:

After defendant Lee Yerkes pleaded guilty to a federal gun charge, the district court found him eligible for a mandatory minimum sentence of fifteen years under the Armed Career Criminal Act ("ACCA") and sentenced him accordingly. On appeal, Yerkes argues that his previous convictions for burglary under Tennessee and Georgia law do not qualify as ACCA predicates and that the district court erred by finding otherwise. We disagree and therefore affirm.

In 2018, Yerkes pleaded guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). At the time, he had seven prior convictions for burglary: two for aggravated burglary in Tennessee and five for simple burglary in Georgia. See Tenn. Code Ann. § 39-14-403 (1990); Ga. Code Ann. § 16-7-1(a) (1980). Based on those convictions, the district court found that Yerkes qualified as an armed career criminal under 18 U.S.C. § 924(e)(1),

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which imposes a mandatory minimum sentence of fifteen years if the defendant has at least three prior convictions "for a violent felony or a serious drug offense, or both." The district court imposed a sentence of 180 months of incarceration followed by five years of supervised release. Yerkes timely appealed his sentence.

I.

The government argues that Yerkes' prior convictions qualify as ACCA predicates under the Act's enumerated-offense clause. See 18 U.S.C. § 924(e)(2)(B)(ii). That clause provides that certain previous felony convictions, including those for "burglary," constitute "violent felon[ies]." To determine whether a past conviction qualifies as burglary under the ACCA, we employ the "categorical approach" and "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the 'generic' crime—i.e., the offense as commonly understood." Descamps v. United States, 570 U.S. 254, 257 (2013). Yerkes' prior convictions count as ACCA predicates "only if the statute's elements are the same as, or narrower than, those of the generic offense." Id.

"[T]he contemporary understanding of 'burglary' has diverged a long way from its commonlaw roots." Taylor v. United States, 495 U.S. 575, 593 (1990). "So the proper setting for examining the contours of generic burglary is not its understanding at common law, but rather its understanding at the time the ACCA was passed, as evidenced in the criminal codes of the states." Greer v. United States, 938 F.3d 766, 771 (6th Cir. 2019). With this frame of reference in mind, the Supreme Court has clarified that "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." Taylor, 495 U.S. at 598.

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In Tennessee, "[a]ggravated burglary is burglary of a habitation." Tenn. Code Ann. § 39-14-403(a). "Burglary" means, among other things, "[e]nter[ing] a building . . . (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault." Tenn. Code Ann. § 39-14-402(a)(1); see also Tenn. Code Ann. § 39-14-401(1) (defining "habitation"). At the time of Yerkes' Georgia burglary convictions, the statute defined "burglary" thus:

A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.

Ga. Code Ann. § 16-7-1(a) (1980).

A.

Yerkes argues that his previous burglary convictions in Tennessee and Georgia state court do not qualify as generic burglary offenses because the "entry" elements in those state statutes are overbroad. In United States v. Brown, the defendant had previously been convicted of aggravated burglary under Tennessee Code § 39-14-403 and raised the same nuanced argument Yerkes makes here. 957 F.3d 679, 683 (6th Cir. 2020). We summarized that argument as follows:

Brown's argument hinges on a subtle common-law distinction. The common law defined burglary narrowly and required more elements than most modern burglary statutes: "At common law, burglary was confined to unlawful breaking and entering a dwelling at night with the intent to commit a felony." Quarles v. United States, 139 S. Ct. 1872, 1877 (2019). The common law nevertheless defined the "entry" element of this narrow crime broadly: "As for the entry, any the least degree of it, with any part of the body, or with an instrument held in the hand is sufficient." 4 William Blackstone, Commentaries on the Law of England 227 (1770).

Despite the breadth of a common-law "entry," some authorities eventually distinguished the entry of a body part (a foot or finger) from the entry of an instrument (a hook or firearm). "[I]f any part of the body be within the house, hand or foot; this at common law [was] sufficient[.]" 2 Edward H. East, Pleas of the Crown 490 (1806). A person thus "entered" a home merely by reaching an arm into it, whether that reach was designed to steal money or unlock a door. See Rollin

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M. Perkins, Criminal Law 155-56 (1957); see also Rex v. Perkes, 171 Eng. Rep. 1204, 1204 (1824). If only an instrument entered a home, by contrast, whether that entry sufficed depended on the reason for the entry. If a person used the instrument to commit the intended felony (for example, the person stuck a hook into the home to grab jewelry or a rifle into it to commit a robbery), both Edward Coke and William Blackstone treated the entry of that instrument alone as a burglary. Blackstone, supra, at 227; 3 Edward Coke, Institutes of the Laws of England 64 (1648). But later cases held that if a person used an instrument merely to undertake the "breaking" and did not also use it to commit the additional felony (for example, the person used a drill bit only to drill through a door), the entry of that instrument alone did not suffice. See Rex v. Hughes, 168 Eng. Rep. 305, 305 (1785); 1 William Hawkins, Pleas of the Crown 162 (6th ed. 1788).

Brown asks us to incorporate this "entry-by-instrument" distinction into the Armed Career Criminal Act's generic definition of burglary, which covers the unlawful "entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599 (emphasis added). He adds that Tennessee law defines "enter" to include not just the "[i]ntrusion of any part of the body" but also the "[i]ntrusion of any object in physical contact with the body or any object controlled by remote control, electronic or otherwise." Tenn. Code Ann. § 39-14-402(b). Brown thus thinks that Tennessee law adopts a broader view of "entry" than the common-law view because it reaches any object—even one used only to gain access to a home. (No state decision, as far as we are aware, has answered this question about § 39-14-402(b)'s scope, and caselaw from before that provision's enactment did not clearly answer the question either. See State v. Crow, 517 S.W.2d 753, 753-55 (Tenn. 1974).) Since Brown's view of this state definition would cover more than his generic definition of "entry," he concludes that Tennessee's definition of "enter" disqualifies all Tennessee burglary convictions from the Armed Career Criminal Act's reach.

Id. (alterations in original) (parallel citations omitted).

Brown thoroughly analyzed the merits of this argument, see id. at 684-89, and concluded that the Supreme Court would not "adopt Brown's view of generic 'entry,'" id. at 684. For starters, "we know that Congress did not view the entry element as a demanding one" because even at common law, little was required to prove an entry: "Sticking a hand or finger through a window sufficed, as did drilling a hole into the walls of a granary to cause the grain to fall out." Id. at 685 (citations and internal quotation marks omitted). And the Supreme Court has "refused to read the [ACCA] as limited to the common-law rules." Id. As mentioned above, the contemporary

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understanding of burglary is quite different, and the "arcane distinctions embedded in the common-law definition have little relevance to modern law enforcement concerns." Taylor, 495 U.S. at 593.

The court characterized the entry-by-instrument issue as "perhaps the prototypical 'arcane distinction' that Taylor would disavow." Brown, 957 F.3d at 685 (quoting Taylor, 495 U.S. at 593). Congress's chief concern in passing the ACCA was the risk of a violent encounter inherent in certain crimes—for burglary, "between the offender and an occupant, caretaker, or some other person who comes to investigate." Taylor, 495 U.S. at 588. And the entry-by-instrument distinction has "no relevance" to that purpose. See Brown, 957 F.3d at 685 ("Which burglar creates the greater risk of a violent encounter with a startled homeowner? The one who reaches a finger between a window and an inner shutter before fleeing (which would qualify as an entry under Brown's common-law rule), or the one who violently chops at a door with an axe that intrudes into the home (which would not qualify under his rule)?" (citation omitted)).

The court also examined the criminal codes of the states at the time of the ACCA's enactment, noting that it appears "that the majority of jurisdictions that had examined this question had retained the narrower common-law rule and limited an entry by instrument to the situation where the instrument is used to remove...

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