United States v. Harvey Mungro, Jr. , 754 F.3d 267 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4503
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HARVEY LEE MUNGRO, JR., a/k/a Harvey Lee Mungro,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:11-cr-00370-FDW-1)
Argued: May 15, 2014 Decided: June 11, 2014
Before TRAXLER, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Chief Judge Traxler and Judge Niemeyer joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee. ON BRIEF: Henderson Hill,
Executive Director, Kevin Tate, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
DUNCAN, Circuit Judge:
Harvey Lee Mungro brings this appeal challenging his
sentence for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). The district court concluded
that Mungro was subject to a mandatory minimum sentence of 15
years’ imprisonment under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C § 924(e), due to Mungro’s three prior state
convictions for “breaking or entering” in violation of N.C. Gen.
Stat. § 14-54(a). For the reasons below, we affirm.
The question presented here is a simple one: does North
Carolina’s “breaking or entering” offense qualify as burglary
and, thus, as a predicate offense under the ACCA? In answering
this question, we first review the legal framework for
categorizing state-law offenses under the ACCA. We then apply
this methodology to the “breaking or entering” offense at issue
in this case.
I.
The ACCA provides significantly strengthened penalties for
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g), when the felon has previously been convicted of
three or more “predicate offenses.” These predicate offenses
include violent felonies and serious drug offenses. 18 U.S.C.
§ 924(e)(1). While violations of § 922(g) are normally
2
punishable by no more than ten years’ imprisonment, 18 U.S.C.
§ 924(a)(2), this sentence increases to a mandatory minimum of
fifteen years’ imprisonment under the ACCA, 18 U.S.C.
§ 924(e)(1).
The ACCA defines “violent felony” to include, as relevant
here, any offense that “is burglary.” 18 U.S.C.
924(e)(2)(B)(ii). 1 Thus, any burglary offense is an ACCA
predicate offense. To determine whether a given offense
qualifies as burglary, we compare the elements of the offense in
question with the elements of burglary, under burglary’s generic
definition. See Taylor v. United States, 495 U.S. 575, 599
(1990). As Taylor illustrated, an offense’s generic definition
may be different from the definition under any particular
state’s law. Rather, an offense’s generic definition is uniform
nationwide. It therefore is ascertained by considering the
similarities between the states’ definitions of the offense, and
by referring to secondary sources such as the Model Penal Code
and eminent criminal-law treatises. Id. at 580, 590-600.
1
The term also covers any offense that “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” “is . . . arson, or extortion,
involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B).
3
We need not engage in such a sweeping investigation here,
however, because the Supreme Court has already done so. The
generic definition of burglary requires: “an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Id. at 598.
“[G]eneric burglary's unlawful-entry element excludes any case
in which a person enters premises open to the public, no matter
his intent; the generic crime requires breaking and entering or
similar unlawful activity.” Descamps v. United States, 133 S.
Ct. 2276, 2292 (2013).
We must then determine the elements of the state-law
offense in question and compare them to the generic definition
of burglary. To do this, we examine the relevant statutory
language and interpretations of that language by the state’s
highest court. Johnson v. United States, 559 U.S. 133, 138
(2010); United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th
Cir. 2014) (en banc). 2 If the elements of the state offense
2
Aparicio-Soria concerned the application of the term
“crime of violence” under U.S.S.G. § 2L1.2, and not “violent
felony” under the ACCA. But “[w]e rely on precedents evaluating
whether an offense constitutes a ‘crime of violence’ under the
Guidelines interchangeably with precedents evaluating whether an
offense constitutes a ‘violent felony’ under the ACCA, because
the two terms have been defined in a manner that is
‘substantively identical.’” United States v. King, 673 F.3d
274, 279 n. 3 (4th Cir. 2012) (quoting United States v. Jarmon,
596 F.3d 228, 231 n. * (4th Cir.2010)).
4
correspond to or are narrower than those provided in the generic
definition of burglary, then the offense qualifies as burglary
and, accordingly, as a predicate offense under the ACCA.
Descamps, 133 S. Ct. at 2281. Under this “formal categorical
approach,” we may consider only the elements of the offense and
the fact of conviction, and not the actual facts underlying that
conviction. 3 Id. at 2283.
Here, the district court concluded that “breaking or
entering” in violation of N.C. Gen. Stat. § 14-54(a) is burglary
and, therefore, that Mungro’s prior convictions under that
statute constituted ACCA predicate offenses. Thus, it sentenced
Mungro to the ACCA’s 15-year mandatory minimum, instead of
sentencing him within the significantly lower range ordinarily
prescribed by 18 U.S.C. § 924(a)(2).
II.
Mungro argues that the district court erred in concluding
that his prior “breaking or entering” convictions qualified as
ACCA predicate offenses, because the elements of “breaking or
3
A more searching analysis called the “modified categorical
approach” is permissible only when the conviction in question
was under a so-called “divisible” statute. See Descamps, 133 S.
Ct. at 2283-84. The parties agree, however, that the formal
categorical approach provides the appropriate framework in this
case.
5
entering” apply to a broader range of conduct than the generic
definition of burglary. We review the district court’s
classification of these offenses under the ACCA de novo. United
States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012). For the
reasons below, we agree with the district court. 4
As Mungro points out, North Carolina’s “breaking or
entering” offense is unusual for the reason suggested by the
conjunction in its name: it applies to “[a]ny person who breaks
or enters any building with intent to commit any felony or
larceny therein.” N.C. Gen. Stat. § 14-54(a) (emphasis added).
The language of the statute suggests that it covers any entry
into a building with the intent to commit a crime, even when a
person enters with the building owner’s consent. This might
indeed disqualify it as a predicate offense because “generic
burglary's unlawful-entry element excludes any case in which a
person enters premises open to the public, no matter his
intent.” Descamps, 133 S. Ct. at 2292.
The North Carolina Supreme Court, however, has greatly
narrowed the applicability of N.C. Gen. Stat. § 14-54(a). It
4
Mungro also argues that the district court erred in
sentencing him based upon his prior criminal history without
these facts’ having been proven to a jury. See Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000). However, he concedes that
this argument is foreclosed by our decision in United States v.
Thompson, 421 F.3d 278, 280 (4th Cir. 2005). We therefore do
not discuss it further.
6
has held that N.C. Gen. Stat. § 14-54(a) was intended merely to
codify preexisting North Carolina law that criminalized breaking
or entering without the consent of the owner. State v. Boone,
256 S.E.2d 683, 687 (N.C. 1979). The court therefore clarified
that, notwithstanding the broad statutory language, “entry with
consent of the owner of a building, or anyone empowered to give
effective consent to entry, cannot be the basis of a conviction
under G.S. 14-54(a).” Id.This construction binds our ACCA analysis and brings the
elements of § 14-54(a) within the generic definition of burglary
as articulated by Taylor and Descamps. As interpreted in Boone,
N.C. Gen. Stat. § 14-54(a) requires either breaking with intent
to commit a felony or larceny therein, or entering without
consent with intent to commit a felony or larceny therein.
These alternatives correspond to the alternative “unlawful” and
“unpriviledged” entry requirements of the generic definition of
burglary. 495 U.S. at 599.
Mungro argues, however, that a footnote in Boone reopens
the possibility that a defendant could be convicted under N.C.
Gen. Stat. § 14-54(a) for entering a building with the consent
of its owner:
We note in passing that there may be occasions when
subsequent acts render the consent void ab initio, as
where the scope of consent as to areas one can enter
is exceeded, or the defendant conceals himself in a
7
building until a time he is not authorized to be there
in order to facilitate a theft.
256 S.E.2d 687 n.3 (internal citations omitted).
Under this language, Mungro argues, a defendant’s later
theft from the building could be construed as a subsequent act
that rendered his permission to enter it void ab initio. If
this is the case, Mungro contends that the elements of N.C. Gen.
Stat. § 14-54(a) remain broader than those of the generic
definition of burglary because the generic definition contains
no such caveat. The generic definition of burglary covers only
entries made without the actual consent of the building’s owner,
and does not contemplate the retroactive cancellation of that
consent. The Supreme Court has made this clear in maintaining
that shoplifting, for example, does not qualify as burglary.
See Descamps, 133 S. Ct. at 2283.
Unfortunately for Mungro, however, Boone itself nowhere
indicates that committing a crime within the building actually
is one of the “subsequent acts [that] render the consent void ab
initio. Boone, 256 S.E.2d at 687 n.3. To the contrary: Boone
makes clear that a defendant’s entry into a building with the
owner’s consent cannot serve as the basis for a conviction under
N.C. Gen. Stat. § 14-54(a), even if he commits a crime once
inside. Id. at 687.
8
Significantly, Boone itself would have been decided
differently if Mungro’s interpretation were correct. Boone was
convicted under N.C. Gen. Stat. § 14-54(a) for his involvement
in a theft from a clothing store in Nags Head, North Carolina.
Boone, the evidence showed, had entered the store, left briefly,
and then returned to the store with three other individuals. He
then waited outside while his confederates entered the store and
stole two sweaters.
The North Carolina Supreme Court vacated his N.C. Gen.
Stat. § 14-54(a) conviction, holding: “[t]he state's evidence
here established that defendant entered the store at a time when
it was open to the public. His entry was thus with the consent,
implied if not express, of the owner. It cannot serve as the
basis for a conviction for felonious entry.” Id. at 687. But
if Mungro’s interpretation were correct, the North Carolina
Supreme Court would have, instead, affirmed Boone’s N.C. Gen.
Stat. § 14-54(a) conviction. Although Boone entered the
clothing store with the owner’s consent, under Mungro’s theory
Boone’s subsequent larceny would have rendered that consent void
ab initio, supporting his conviction. 5 Thus, whatever else may
5
Mungro contends that Boone’s consent to enter would not
have been voided because Boone did not actually steal any
merchandise. But this overlooks the fact that, although Boone
may not have physically picked up the stolen sweaters, he was,
nonetheless, convicted of larceny for his role in the
(Continued)
9
qualify as “subsequent acts [that] render the consent void ab
initio,” Id. at 687 n.3, a subsequent theft cannot be one of
them, because that alternative would have been inconsistent with
the holding of Boone itself.
Second, Mungro’s interpretation would cause Boone’s holding
to be almost entirely swallowed by its footnote. N.C. Gen.
Stat. § 14-54(a) only covers entering a building with the intent
to commit a felony or larceny. Under Mungro’s interpretation,
it would seem, a defendant’s consent to enter would be rendered
void ab initio whenever the defendant actually committed his
intended crime. Thus, Mungro’s interpretation would implausibly
render Boone’s holding applicable only to the obscure case of an
ill-intentioned but well-behaved defendant: one who entered a
building with the owner’s consent intending to commit a crime,
but who, despite not actually committing the intended crime, was
nonetheless charged with violating N.C. Gen. Stat. § 14-54(a).
Mungro points to two decisions of the North Carolina Court
of Appeals that held a subsequent act of theft to have rendered
the thief’s permission to enter void ab initio: State v.
Rawlinson, 679 S.E.2d 878, 884 (N.C. Ct. App. 2009), and In re
shoplifting. The North Carolina Supreme Court affirmed Boone’s
larceny conviction, observing that “the larceny itself is the
gravamen of this case.” Boone, 256 S.E.2d at 688.
10
S.D.R., 664 S.E.2d 414, 420 (N.C. Ct. App. 2008). But when the
state’s highest court has already articulated the elements of
the offense, we are not free to conclude that it got them wrong
and, instead, credit the opinions of the state’s lower courts.
See Aparicio-Soria, 740 F.3d at 154.
Likewise, it is not plausible to characterize these lower-
court opinions as merely filling in what Boone left open. As we
have explained, Boone makes clear that a subsequent act of theft
does not render the thief’s permission to enter void ab initio.
Mungro likewise falls short of showing that North Carolina’s
lower courts consistently apply Boone differently from our
reading of it. The two opinions he highlights hardly establish
a pattern, and even less so when the proposition for which
Mungro cites them is contained only in alternate holdings. In
both, the North Carolina Court of Appeals first held that the
defendant did not have permission to enter the portion of the
building where he committed the theft and only then held,
alternatively, that his theft rendered his consent to enter void
ab initio. Rawlinson, 679 S.E.2d at 884; In re S.D.R., 664
S.E.2d at 420.
We therefore conclude that N.C. Gen. Stat. § 14-54(a), as
interpreted by the North Carolina Supreme Court, sweeps no more
broadly than the generic elements of burglary. The North
Carolina Supreme Court’s clarification that the offense requires
11
either breaking or entering without a building owner’s consent
brings it within Taylor’s requirement of an “unlawful or
unprivileged entry.” 495 U.S. at 599. This clarification also
“excludes any case in which a person enters premises open to the
public, no matter his intent” as required by Descamps. 133 S.
Ct. at 2292. 6 N.C. Gen. Stat. § 14-54(a) therefore qualifies as
an ACCA predicate offense under 18 U.S.C. § 924(e)(2)(B)(ii).
III.
For the reasons above, Mungro’s sentence is
AFFIRMED.
6
We therefore need not address Mungro’s argument that
Descamps overrules our prior opinion in United States v. Bowden,
975 F.2d 1080, 1081 (4th Cir. 1992), where we previously
concluded, as we do here, that N.C. Gen. Stat. § 14-54(a) falls
within the generic definition of burglary and, therefore, is an
ACCA predicate offense.
12