Academic journal article Harvard Law Review

Criminal Law - Armed Career Criminal Act - Eighth Circuit Holds That Generic Burglary Requires Intent at First Moment of Trespass

Academic journal article Harvard Law Review

Criminal Law - Armed Career Criminal Act - Eighth Circuit Holds That Generic Burglary Requires Intent at First Moment of Trespass

Article excerpt

CRIMINAL LAW--ARMED CAREER CRIMINAL ACT--EIGHTH CIRCUIT HOLDS THAT GENERIC BURGLARY REQUIRES INTENT AT FIRST MOMENT OF TRESPASS.--United States v. McArthur, 850 F.3d 925 (8th Cir. 2017)

The Armed Career Criminal Act of 1984 (1) (ACCA) mandates an enhanced sentence of fifteen years to life for a defendant convicted of possessing a firearm as a felon under 18 U.S.C. [section] 922(g) if the defendant has three prior convictions for a "violent felony," (2) including burglary. (3) Because a definition of burglary was deleted in an amendment to the ACCA (4) the Supreme Court held in Taylor v. United States (5) that Congress had intended burglary to have a uniform definition, informed by the various states' definitions of burglary. (6) "[G]eneric" burglary, the Taylor Court determined, was "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crimed." (7) Taylor also provided lower courts with the method they must use when determining whether prior convictions qualify as ACCA predicates: under the so-called "categorical approach," courts "look only to the fact of conviction and the statutory definition of the prior offense" to determine whether the state statute "substantially corresponds to 'generic' burglary." (8) A state statute qualifies as an ACCA predicate when it is "narrower than the generic view," that is, when being convicted under that state statute "necessarily implies that the defendant has been found guilty of all the elements of generic burglary." (9) But a state statute that "define[s] burglary more broadly," (10) for example by including lawful entries, cannot be an ACCA predicate. (11)

Recently, in United States v. McArthur, (12) the Eighth Circuit took its place in a circuit split over whether generic burglary requires intent to commit a crime by the first moment of trespass, and thus whether state statutes that lack such a requirement are broader than generic burglary. Answering these questions in the affirmative, McArthur found that a Minnesota statute that criminalized entering a building without intent to commit a crime--and later committing a crime therein--was broader than generic burglary and thus that convictions under that statute were ineligible to be ACCA predicates. (13) In taking this position, McArthur, unlike opinions on the other side of the split, (1) properly identified the correct interpretation of Taylor's definition of generic burglary; and (2) properly applied the categorical approach in the settled and rigid manner required by Taylor and its progeny. Ultimately, McArthur's position is not only the one best supported by Supreme Court precedent but also the one that best accords with broader principles of fairness in sentencing.

After a trial in early 2012, a jury found Anthony Cree, William Morris, and Wakinyan McArthur guilty of charges relating to their activity in the Native Mob, a Minnesota gang. (14) Morris was convicted of, among other things, violating [section] 922(g) by possessing a firearm as a convicted felon. (15) The district court denied all defendants' motions for acquittal and new trials. (16) On appeal, all defendants challenged the sufficiency of the evidence. (17) McArthur further argued that the trial court's imposition of consecutive sentences for firearms that were part of the same crime violated the Double Jeopardy Clause (18) and that the jury instructions on another charge did not comply with Supreme Court precedent (19) Morris, in addition to arguing that the jury instructions for two of his charges had constructively amended the indictment (20) argued that the trial court had incorrectly found that his prior Minnesota third-degree burglary convictions were ACCA predicates. (21) The state statute penalizes "[w]hoever enters [or remains in] a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters [or remains in] a building without consent and steals or commits a felony or gross misdemeanor while in the building. …

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