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8TH CIRCUIT SAYS NORTH DAKOTA BURGLARY TOO BROAD FOR ACCA

Courts are still struggling over the application of Mathis v. United States, the 2016 case that changed the way state statutes are interpreted for imposing Armed Career Criminal Act sentences. Mathis says that in determining whether a statute can be divided into crimes that qualify for ACCA treatment and crimes that are too broad for ACCA treatment, you first read the plain text, then see whether the separate offenses have different punishments, then look at state court decisions in the issue, and then check out state jury instructions. If none of that works, chances are it may still not count for an ACCA punishment…

That’s what the 8th Circuit ran into last week with defendant Jon Kinney. He had a prior North Dakota burglary conviction of a “building or occupied structure” that helped qualify him for an ACCA sentence. But the state statute provided that an occupied structure could include a vehicle, and vehicle burglary falls beyond the kind of generic burglary that counts against the ACCA.

The Circuit looked at the statute, state court decisions and jury instructions, but could not tell whether “building or occupied structure” described two elements or just two means of committing the crime. Frustrated, the court gave just a “peek” at the record of Jon’s prior conviction “for the sole and limited purpose of determining whether the listed items are elements of the offense.”

It turned out that each of Jon’s charges just accused him of burgling “a building or occupied structure.” The fact that his indictments listed both, the Court held, was “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” Thus, the Circuit held, Jon’s prior North Dakota convictions can’t count as predicates for the ACCA.

United States v. Kinney, Case No. 16-3764 (8th Cir. Apr. 23, 2018)

– Thomas L. Root