United States v. Michael Khoury , 877 F.3d 720 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1730
MICHAEL SMITH,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 6606 — Robert W. Gettleman, Judge.
____________________
No. 17-2090
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL J. KHOURY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:15-CR-30013-DRH-1 — David R. Herndon, Judge.
____________________
2 Nos. 17-1730 & 17-2090
ARGUED NOVEMBER 14, 2017 — DECIDED DECEMBER 13, 2017
____________________
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. These appeals, which we
have consolidated for decision, present the question whether
a conviction for residential burglary in Illinois under 720
ILCS 5/19-3 (1982) counts as “burglary” for the purpose of
the Armed Career Criminal Act, 18 U.S.C. §924(e). Taylor v.
United States, 495 U.S. 575 (1990), holds that a state’s label is
not dispositive and that a conviction counts only if the of-
fense meets a federal definition of “generic burglary”. We
held in United States v. Haney, 840 F.3d 472 (7th Cir. 2016),
that the pre-1982 version of Illinois law covering ordinary
burglary did not satisfy the federal definition. Michael Smith
and Michael Khoury (collectively “defendants”) ask us to
hold the same about the residential-burglary statute under
which they were convicted.
The facts and procedural histories of these cases do not
matter. It is enough to say that each defendant was convict-
ed of possessing a firearm, see 18 U.S.C. §922(g)(1), despite
earlier convictions making that illegal. Each is serving 180
months’ imprisonment, the statutory floor for someone con-
victed of this crime who has three or more earlier convic-
tions for a violent felony or serious drug offense. Section
924(e)(2)(B)(ii) includes “burglary” in the list of violent felo-
nies but does not define “burglary.” For both defendants a
180-month sentence is proper only if a conviction for resi-
dential burglary in Illinois under the 1982 revision of 720
ILCS 5/19-3 is “generic burglary” under Taylor. The appeals
in both defendants’ cases arise from collateral attacks, but
Nos. 17-1730 & 17-2090 3
the United States waived all procedural defenses in order to
facilitate appellate resolution of the question, which affects
many other sentences. None of the procedural matters is ju-
risdictional, so the waivers are conclusive. See Wood v. Mi-
lyard, 566 U.S. 463 (2012).
Both district judges relied on Dawkins v. United States, 809
F.3d 953 (7th Cir. 2016), which they read as conclusively es-
tablishing that residential burglary in Illinois satisfies Taylor.
But the only question addressed in Dawkins was whether
residential burglary in Illinois includes the element of break-
ing and entering; we answered yes. Dawkins did not consider
whether the Illinois offense includes the element of entering
a “building or other structure” (Taylor, 495 U.S. at 598). That
a given decision resolves one legal argument bearing on a
subject does not mean that it has resolved all possible legal
arguments bearing on that subject. See Rodriguez-Contreras v.
Sessions, 873 F.3d 579, 580 (7th Cir. 2017). So defendants’ ar-
gument about the building-or-structure element is open.
In Illinois, “[a] person commits residential burglary who
knowingly and without authority enters the dwelling place
of another with the intent to commit therein a felony or
theft.” 720 ILCS 5/19-3(a). (This is how that statute read be-
tween 1982 and 2001; changes since then are irrelevant for
the purpose of §924(e).) Another statute defines “dwelling”:
(a) Except as otherwise provided in subsection (b) of this Section,
“dwelling” means a building or portion thereof, a tent, a vehicle,
or other enclosed space which is used or intended for use as a
human habitation, home or residence.
(b) For the purposes of Section 19-3 of this Code, “dwelling”
means a house, apartment, mobile home, trailer, or other living
quarters in which at the time of the alleged offense the owners or
4 Nos. 17-1730 & 17-2090
occupants actually reside or in their absence intend within a rea-
sonable period of time to reside.
720 ILCS 5/2-6. (This definition has been in force since 1987,
before defendants’ predicate crimes occurred.) Defendants
maintain that “a tent, a vehicle, or other enclosed space” is
not a “structure” as the Supreme Court required in Taylor—
which adopted as the common-law definition of burglary
any crime, regardless of its exact definition or label, having the
basic elements of unlawful or unprivileged entry into, or remain-
ing in, a building or structure, with intent to commit a crime.
495 U.S. at 599. Subsection (a), in which the phrase “a tent, a
vehicle, or other enclosed space” appears, does not apply to
the crime of residential burglary. To be convicted of that of-
fense, a person must enter “a house, apartment, mobile
home, trailer, or other living quarters”. And that phrase
seems to come within Taylor’s reference to “a building or
structure”.
Not so, defendants insist. They contend that a “mobile
home” and a “trailer” are not structures. That contention is a
flop for a mobile home, which in Illinois is “a manufactured
home as defined in subdivision (53) of Section 9-102 of the
Uniform Commercial Code.” 625 ILCS 5/1-144.03. The UCC,
in turn, defines a manufactured home as a “structure, trans-
portable in one or more sections, … which is built on a per-
manent chassis and designed to be used as a dwelling with
or without a permanent foundation when connected to the
required utilities”. A “mobile home,” so defined, is a “build-
ing or structure” by anyone’s understanding. It is just a pre-
fabricated house. (There is some question whether 625 ILCS
5/1-144.03 applies to all uses of “mobile home” throughout
Nos. 17-1730 & 17-2090 5
Illinois law, but even if it does not a mobile home in com-
mon understanding remains a prefabricated house.)
Defendants are on firmer ground with “trailer,” which
the Illinois Vehicle Code defines as “[e]very vehicle without
motive power in operation, other than a pole trailer, de-
signed for carrying persons or property and for being drawn
by a motor vehicle and so constructed that no part of its
weight rests upon the towing vehicle.” 625 ILCS 5/1-209.
Although only those trailers in which “the owners or occu-
pants actually reside” (720 ILCS 5/2-6(b)) count as dwellings,
trailers are still movable. Defendants insist that the possibil-
ity of hitching a trailer to a vehicle and taking it on the
highway during a vacation means that it cannot be a “build-
ing or structure” as the Justices used that phrase.
Worse, defendants insist, the open-ended statutory refer-
ence to “other living quarters” might include houseboats or
tents or even cars. The state judiciary has never held that it
does include those items, but the bare possibility that it
might, defendants insist, means that Illinois law does not
come within Taylor’s definition—for Taylor asks what the el-
ements of the state law include, not what a given defendant
did in fact. 495 U.S. at 600–02. (The parties agree that §5/19-3
is indivisible for the purpose of Mathis v. United States, 136 S.
Ct. 2243 (2016), so that if any of the defined ways to commit
“residential burglary” in Illinois falls outside the federal def-
inition of “burglary,” the state-law convictions do not count
under the Armed Career Criminal Act. See also Descamps v.
United States, 133 S. Ct. 2276, 2283 (2013).)
We conclude that the crime of residential burglary in Illi-
nois does not cover the entry of vehicles (including boats)
and tents. These places are listed in subsection (a) of the def-
6 Nos. 17-1730 & 17-2090
inition but not in subsection (b), and the Appellate Court of
Illinois has held that subsection (b) excludes all vehicles oth-
er than occupied trailers. People v. Taylor, 345 Ill. App. 3d 286(2003). That decision logically covers boats and tents as well.
Entering those places with intent to steal is ordinary burgla-
ry in Illinois but not residential burglary, and both defend-
ants were convicted of residential burglary. The proper
treatment of trailers as a matter of federal law remains to be
determined, however.
Taylor v. United States set out to create a federal common-
law definition of “burglary.” This counsels against reading
its definition as if it were a statute. All common law is provi-
sional. The Justices did not consider in Taylor or any later
decision whether an occupied trailer counts as a “struc-
ture”—or, if it does not, whether the definition should be
modified in common-law fashion to include all of those en-
closed places in which people live. The Court began the sub-
stantive discussion in Taylor by noting an older common-law
definition of burglary: “a breaking and entering of a dwell-
ing at night, with intent to commit a felony” (495 U.S. at
592). They added: “Whatever else the Members of Congress
might have been thinking of, they presumably had in mind
at least the ‘classic’ common-law definition when they con-
sidered the inclusion of burglary as a predicate offense.” Id.
at 593. The Justices adopted a broader definition—omitting
mention of the time of day, the nature of the entered place as
a dwelling, and the requirement that the crime to be commit-
ted be a “felony”—because by 1984 almost all states had ex-
panded their definitions of burglary, and the Justices con-
cluded that a statutory word enacted in 1984 should mean
what most states called burglary in 1984. Yet by defendants’
lights that traditional definition, if enacted by any state,
Nos. 17-1730 & 17-2090 7
would not qualify as “burglary” because it uses the word
“dwelling” (which can include a tent) rather than “building
or structure.” Likewise, by defendants’ lights, the statutes
that states do have on the books are not generic burglary be-
cause they contain words such as “trailer” that exceed the
scope of buildings and structures. Indeed, on defendants’
view almost all states’ existing burglary statutes are outside
the scope of federal generic burglary.
Treating Taylor as if it were a statute, that is what four
courts of appeals have held. United States v. Stitt, 860 F.3d
854 (6th Cir. 2017) (en banc) (Tennessee aggravated burglary
is broader than generic burglary because it covers “mobile
homes, trailers, and tents” used as dwellings); United States
v. Sims, 854 F.3d 1037, 1039–40 (8th Cir. 2017) (Arkansas res-
idential burglary is broader than generic burglary because it
“criminalizes the burglary of vehicles where people live or
that are customarily used for overnight accommodations”);
United States v. White, 836 F.3d 437 (4th Cir. 2016) (West Vir-
ginia burglary is broader than generic burglary because it
protects “dwelling house[s],” defined to include “mobile
home[s]” and “house trailer[s]”); United States v. Grisel, 488
F.3d 844 (9th Cir. 2007) (en banc) (any state law that covers
non-buildings is not generic burglary). At least one court of
appeals has held the opposite. United States v. Patterson, 561
F.3d 1170 (10th Cir. 2009), reaffirming United States v. Spring,
80 F.3d 1450 (10th Cir. 1996). A panel of the Fifth Circuit
agreed with the Tenth, but as it has granted rehearing en
banc the rule in that circuit remains to be settled. See United
States v. Herrold, 685 Fed. App’x 302, rehearing en banc
granted, 693 Fed. App’x 272 (5th Cir. 2017).
8 Nos. 17-1730 & 17-2090
We think it unlikely that the Justices set out in Taylor to
adopt a definition of generic burglary that is satisfied by no
more than a handful of states—if by any. Statutes should be
read to have consequences rather than to set the stage for
semantic exercises. We therefore agree with the Tenth Cir-
cuit in Patterson and Spring and with Judge Sutton’s dissent-
ing opinion (joined by Judges Clay, Gibbons, Rodgers,
McKeague, and Kethledge) in Stitt. See 860 F.3d at 876–81. A
violation of 720 ILCS 5/19-3 is generic burglary for the pur-
pose of §924(e) and similar federal recidivist statutes.
In reaching this conclusion we have considered not only
that common-law understandings are open to modification
as circumstances reveal potential weaknesses but also the
Supreme Court’s own explanation for its definition. The Jus-
tices told us that “Congress meant by ‘burglary’ the generic
sense in which the term is now used in the criminal codes of
most States” (Taylor, 495 U.S. at 598) and set out to produce a
definition capturing that sense. Recognizing 720 ILCS 5/19-3
and similar statutes as generic burglary treats the Justices as
having succeeded at that task; Stitt and similar decisions
treat the Justices as having failed and having nullified part of
a federal statute as a result.
After saying that their goal was to capture “the generic
sense in which the term is now used in the criminal codes of
most States,” the Justices added that their “usage approxi-
mates that adopted by the drafters of the Model Penal Code”
(Taylor, 495 U.S. at 598 n.8), under which “[a] person is guilty
of burglary if he enters a building or occupied structure, or
separately secured or occupied portion thereof, with pur-
pose to commit a crime therein, unless the premises are at
the time open to the public or the actor is licensed or privi-
Nos. 17-1730 & 17-2090 9
leged to enter.” ALI, Model Penal Code §221.1 (1980). In the
Model Penal Code the phrase “occupied structure” includes
“any structure, vehicle or place adapted for overnight ac-
commodation of persons, or for carrying on business therein,
whether or not a person is actually present.” Id. at §221.0(1).
The Model Penal Code adds that, although someone cannot
be convicted of burglary for entering an ordinary motor ve-
hicle or freight car, a person may be convicted for entering a
trailer home with intent to steal. Id. at §221.1 Comment 3(b).
If defendants in these cases are right, then the Justices
said that they were following the Model Penal Code’s ap-
proach but did the opposite. We think it better to conclude
that Taylor’s definition of generic burglary is a compact ver-
sion of standards found in many states’ criminal codes, in-
cluding that of Illinois. We grant that, per Shepard v. United
States, 544 U.S. 13, 15–16 (2005), an unoccupied boat or mo-
tor vehicle is not a “structure.” But just as Taylor did not
grapple with all enclosed spaces that people may call home,
neither did Shepard. Certainly the Justices did not say in
Shepard that they were restricting the coverage of the generic
definition adopted in Taylor.
People live in trailers, which are “structures” as a matter
of ordinary usage. Trailers used as dwellings are covered by
the Illinois residential-burglary statute. The crime in 720
ILCS 5/19-3 therefore is “burglary” under §924(e)(2)(B)(ii).
Defendants were properly sentenced as armed career crimi-
nals.
AFFIRMED