U.S. v. MARTIN, NO. 12-5001
Decided: June 5, 2014
The Fourth Circuit held that the district court erred by treating the defendant’s 2009 conviction for fourth degree burglary as a “crime of violence” for the purposes of determining his base offense level under the U.S. Sentencing Guidelines (U.S.S.G.).
Martin was convicted for being a felon in possession under the Armed Career Criminals Act (“ACCA”). According to the applicable Sentencing Guideline for the ACCA, there is a four-point discrepancy for an individual’s base offense level based on his prior felony convictions for crimes of violence. At the time he plead guilty, Martin had three previous convictions, including two Maryland convictions, one for conspiracy to commit robbery, and one for fourth degree burglary. The district court held that both convictions involved crimes of violence, and set Martin’s base offense level at twenty-four. As a result, Martin’s advisory sentencing guideline range was seventy-seven to ninety-six months, and Martin was ultimately sentenced to seventy-seven months’ imprisonment. On appeal, Martin accepted that the conspiracy charge as a crime of violence, but argued that the fourth degree burglary charge was not. Martin contended that his base level offense should have been twenty, with a corresponding guideline range of fifty-one to sixty-three months.
The applicable U.S.S.G. defines a “crime of violence” as any federal or state offense that is punishable by more than one years’ imprisonment and that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” of (2) “is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Court noted that the statute does not involve an element of attempted, or threatened, use of force against another, and so its analysis focused on the second prong.
Maryland’s fourth degree burglary statute includes four different crimes: (1) “breaking and entering the dwelling of another,” (2) “breaking and entering the storehouse of another,” (3) “being in a dwelling or storehouse of another” with the intent to commit theft, and (4) “possessing burglar’s tools with the intent to use.” In Taylor v. United States, the U.S. Supreme Court defined burglary under the ACCA as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S. 575, 602 (1990). The ACCA adds an additional element that the unlawful entry be in a dwelling. Therefore, under this definition, the fourth degree burglary statute does not qualify as “burglary” under the ACCA because it lacks the requirement that the offender intend to commit a crime. Thus, the Court noted that in order to be considered a “crime of violence,” the Maryland statute must satisfy the residual clause—that is, it must involve “conduct that presents a serious potential risk of physical injury to another.”
The Court reviewed the U.S. Supreme Court precedent discussing the scope of the residual clause. In Begay v. United States, the U.S. Supreme Court held that the residual clause only encompasses crimes similar in kind and of comparable risk to the enumerated crimes. 553 U.S. 137 (2008). Under this analysis, the U.S. Supreme Court noted that all of the enumerated offenses generally involve “purposeful, violent, and aggressive conduct.” In a subsequent decision, Sykes v. United States, 131 S. Ct. 2267 (2011),the U.S. Supreme Court returned to a comparable degree of risk analysis, by analyzing the degree of risk posed by the offense in order to determine whether it qualifies under the residual clause. Specifically, the U.S. Supreme Court noted that Begay involved a strict liability offense.
The Fourth Circuit acknowledged that most circuits have held that Sykes has limited Begay’s similar-in-kind inquiry to only those offenses involving strict liability, negligence, or recklessness. However, the Fourth Circuit continues to apply Begay to residual clause cases, and the Court did so in this case. Under the degree of risk test, the Court found that the offense of fourth degree burglary presents a comparable risk of harm to general burglary—the closest enumerated offense—because the risk associated with both is the possibility of a face-to-face confrontation between the burglar and property owner. In so holding, the Court rejected Martin’s contention that the risk of harm from general burglary stems from the burglar’s intent to commit a crime.
However, this conclusion did not end the Court’s analysis because under the approach adopted by the Fourth Circuit, the offense must also be similar in kind to the offenses enumerated in the U.S.S.G.—burglary, arson, extortion, or a crime involving explosives. After examining Maryland’s statute, the Court determined that the crimes could be committed based on an unreasonable assumption that an individual had permission to enter, which constitutes negligent, but not purposeful, conduct. Therefore, the Court held that the fourth degree burglary statute is not similar in kind to the enumerated offenses. As such, it does not qualify as a crime of violence under the applicable Sentencing Guideline, and the district court erred in its treating it as such. The Court vacated Martin’s sentence and remanded the case for resentencing.
Judge Diaz wrote separately to concur, and specifically noted the lack of clarity surrounding this issue, and urged Congress or the U.S. Supreme Court to “shed light on this ‘black hole of confusion and uncertainty.’” In his dissent, Judge O’Grady agreed with the majority’s degree-of-risk analysis. However, Judge O’Grady disagreed that Begay should apply in this case because fourth degree burglary is not a strict liability or negligence crime. Judge O’Grady noted that the Fourth Circuit’s application of Begay and Sykes has been inconsistent, and recent cases have limited its application to only those cases involving strict liability or negligence offenses. However, even if Begay did apply, the dissent argued that the presence of a defense for reasonable mistake does not mean the crime is one of negligence. Rather, a breaking and entering under the fourth degree burglary statute must be knowingly committed, which constitutes purposeful conduct under Begay.