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5TH CIRCUIT’S EN BANC HERROLD DECISION SURPRISES, BUT DOESN’T DISAPPOINT

The 5th Circuit handed down the long-awaited United States v. Herrold decision last week, an 8-7 cliffhanger that held by the narrowest of margins that Texas’s burglary statute was too broad to serve as a crime of violence predicate for an Armed Career Criminal Act sentence.

The importance of the decision can hardly be overstated. Texas has more people than 48 of the 50 states, and it logs over 115,000 burglaries a year. What’s more, the grounds used by the Herrold court to invalidate the burglary statute could easily resonate in many other states with similar statutes.

The Texas burglary statute provided that anyone who entered a building or habitation intending to commit a felony, or who remains concealed in a building or habitation with the intent to commit a felony, had committed a burglary. Herrold argued that the statute could not count as a burglary under the ACCA’s “enumerated offenses” clause, because it defined burglary more broadly than the ACCA’s general burglary. First, “habitation” was defined to include RVs, campers and other vehicles turned into living quarters. Second, generic burglary requires that the burglar enter the building with the intent to commit a crime. The Texas statute calls it burglary when someone enters a building for perfectly innocent reasons, but decides later to commit a felony.

The general belief was that the Herrold court would invalidate the Texas statute as an ACCA predicate, and that the vote would not even be close. After all, the Supreme Court had been clear in Mathis that a burglary statute that defined a building as including vehicles was too broad for the ACCA. But the Herrold court didn’t bite on the vehicle part of the definition. It ruled that including just vehicles that had been turned into living quarters might not make the statute too broad, and decided to save that question for another day.

The Herrold court first concluded that all of the subsections of Texas Penal Code 30.02(a)(3) were indivisible. The government found all sorts of cases where Texas courts called the various subsections of the statute “elements,” and argued that this meant the statute was divisible, and thus, even if one subsection was too broad, the other ones were not. But the Circuit cited Texas cases that held a jury did not have to be unanimous as to which subsection of the statute a defendant violated, concluding those cases settled the issue. “Mathis… demanded certainty. It demanded that we find rulings of the kind” it relied on —rulings that may definitively answer the question of divisibility. We are bound to examine how a state treats its own statute using the materials that the Supreme Court said speak with sufficient certainty on the matter.”

Because the Texas burglary statute is not divisible, if any one part of the statute is too broad for the ACCA, the whole statute fails. And fail it does. The Herrold court said that general ACCA burglary was after common burglars. “The ACCA’s definition of generic burglary requires unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime,” the Court said. “Both the Supreme Court’s language and its sources suggest that this constitutes a contemporaneity requirement: to be guilty of generic burglary, a defendant must have the intent to commit a crime when he enters or remains in the building or structure. Subsection 30.02(a)(3) contains no textual requirement that a defendant’s intent to commit a crime contemporaneously accompany a defendant’s unauthorized entry… Because of this fact, it is broader than the ACCA’s generic definition.”

The dissent was sharp, complaining that “the effect of the majority opinion, in addition to unsettling established precedent, is to render all burglary convictions in the second-most populous state in the country nullities as far as the ACCA is concerned.” The 4th has ruled the opposite on the Texas statute, and 6th Circuit has gone the other was on a similar Tennessee statute. The 8th Circuit, on the other hand, agreed with Herrold’s holding in construing a Minnesota statute.

All this means that the issue Herrold raises, which is important to ACCA and career offender defendants across the country, could well end up in the Supreme Court.

United States v. Herrold, Case No. 14-11317 (5th Cir. Feb. 20, 2018)

 – Thomas L. Root