Last week, the Supreme Court held in United States v. Stitt, Nos. 17-765 & 17-766, that the Armed Career Criminal Act’s (ACCA’s) definition of “violent felony” covers burglary statutes that criminalize unlawful entry into vehicles adapted or customarily used for overnight accommodation. As explained below, the decision does not appear to have any bearing on whether the ACCA covers New York’s third-degree burglary statute, N.Y. Penal Code § 140.20.
The enumerated clause of the ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(1)(ii). In Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court adopted the categorical approach to analyzing the ACCA and, in doing so, held that Congress “intended a uniform definition of burglary [to] be applied” to cases involving that predicate offense. Id. at 580. This uniform definition of burglary, the Court held in Taylor, covers unlawful entry into “a building or other structure, with intent to commit a crime.” Id. at 598.
Simply put, the Court in Stitt held that this generic definition covers state statutes that criminalize burglaries of vehicles that are used or adapted for the “overnight accommodation of persons,” Ark. Code. Ann. § 5-39-201(a)(1); Tenn. Code. Ann. § 39-14-403(a). The Court’s reasoning was twofold. First, when the ACCA was enacted in 1986, “a majority of state burglary statutes covered vehicles adapted or customarily used for lodging.” Slip op. at 7. Second, when Congress enacted the ACCA, it deemed burglary to be inherently dangerous because it “‘creates the possibility of a violent confrontation between the offender and an occupant, caretaker, or some other person who comes to investigate.'”* Id. at 8 (quoting Taylor, 491 U.S. at 588). Such a risk is also present, the Stitt Court reasoned, when a person “breaks into a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or customarily used for lodging.” Id.
Fortunately, Stitt‘s holding does not suggest that third-degree New York burglary is a violent felony under the ACCA. Significantly, Stitt includes an appendix of state burglary statutes that, when the ACCA was enacted, criminalized unlawful entries into vehicles that are adapted or customarily used for lodging. Slip op. at 12. This appendix does not include any New York statutes. This exclusion is appropriate, because New York provides that “[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y. Penal Code § 140.20. The New York Penal Code defines “building” expansively to include, for example, any “inclosed motor truck, or . . . inclosed motor truck trailer”—irrespective of whether the truck is used for overnight accommodation. Id. § 140.00. This expansive definition penalizes unlawful entries that, on their face, pose little risk of a violent confrontation.
*As an empirical matter, Congress was wrong to find that burglaries generally involve a high risk of violent confrontation. See, e.g., Richard S. Culp et al., Is Burglary a Crime of Violence? An Analysis of National Data 1998–2007, at 29 (2015), available at https://www.ncjrs.gov/pdffiles1/nij/grants/248651.pdf (7.6% of burglaries between 1998 and 2007 resulted in actual violence or threats of violence, while actual physical injury was reported in only 2.7% of all burglaries). Thus, the Career Offender Guideline, U.S.S.G. 4B1.2(a)(2) was revised in 2016 to eliminate burglary from the list of enumerated offenses that qualify as crimes of violence. See U.S.S.G. App. C. Amend. 798, available at https://guidelines.ussc.gov/ac/798 (explaining that the revision was warranted because “burglary offenses rarely result in physical violence”).