United States v. Yerkes
Decision Date | 10 July 2020 |
Docket Number | No. 19-5768,19-5768 |
Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LEE YERKES, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0398n.06
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), 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.
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.
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).
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:
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 contemporaryunderstanding 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 ( .
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 property from the premises or injure...
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