United States v. Jeremy Glispie ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1224
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY GLISPIE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:18-cr-10002-JES-JEH-1 — James E. Shadid, Judge.
____________________
ARGUED SEPTEMBER 25, 2019 — DECIDED NOVEMBER 19, 2019
____________________
Before RIPPLE, ROVNER, and BRENNAN, Circuit Judges.
RIPPLE, Circuit Judge. On January 23, 2018, the Govern-
ment filed a single-count indictment against Jeremy Glispie
for being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g). Mr. Glispie entered a plea of guilty, but re-
served the right to challenge his anticipated designation as
an armed career criminal based on his prior convictions for
residential burglary under Illinois law. Following our guid-
ance, the district court concluded that residential burglary in
2 No. 19-1224
Illinois is no broader than “generic burglary” and that it
therefore qualifies as a violent felony under the Armed Ca-
reer Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii).
Consequently, it sentenced Mr. Glispie as an armed career
criminal and imposed a sentence of 180 months.
Before this court, Mr. Glispie renews his objection to his
designation as an armed career criminal based on his convic-
tions for residential burglary under Illinois law. Acknowl-
edging that our decision in Dawkins v. United States, 809 F.3d
953 (7th Cir. 2016), is controlling, he urges us to revisit that
decision. According to Mr. Glispie, Dawkins did not explore
all of the relevant aspects of Illinois burglary. Had we fully
considered the question, he submits, we would have reached
the conclusion that residential burglary in Illinois covers a
broader swath of conduct than generic burglary for purposes
of the ACCA and, therefore, cannot be used as a predicate
offense for purposes of the ACCA.
After considering the briefs and hearing oral argument,
we conclude that Mr. Glispie has raised an important issue
that has not been considered fully: whether the lim-
ited-authority doctrine applies to the Illinois residential bur-
glary statute. As we will explain, if the limited-authority
doctrine applies to residential burglary, then a conviction for
Illinois residential burglary is broader than generic burglary
and cannot qualify as an aggravated felony for purposes of
the ACCA. If, however, the limited-authority doctrine does
not apply to Illinois residential burglary, then a conviction
under that statute is no broader than generic burglary and
qualifies as an aggravated felony. Because the Supreme
Court of Illinois has not made this determination, and be-
cause the question is likely to arise frequently and to affect
No. 19-1224 3
the administration of justice in both the state and federal
courts, we respectfully seek the assistance of the Supreme
Court of Illinois by certifying this controlling question of
1
law.
I.
Whether Mr. Glispie’s convictions qualify as violent felo-
nies under the ACCA requires us to look at the elements of
generic burglary under the ACCA as well as the elements of
residential burglary under Illinois law. We turn first to the
ACCA, then to Illinois law, and finally to our cases that have
addressed the intersection of the two.
A. Generic Burglary under the ACCA
The ACCA “increases the sentences of certain federal de-
fendants who have three prior convictions ‘for a violent fel-
ony.’” Descamps v. United States, 570 U.S. 254, 257 (2013)
(quoting 18 U.S.C. § 924(e)). For purposes of the ACCA, a
violent felony is 1) a crime that “has as an element the use,
attempted use, or threatened use of physical force against
the person of another” or 2) “burglary, arson, … extortion,
2
[or] involves the use of explosives.” 18 U.S.C. § 924(e)(2)(B).
1 Because our decision calls into question our decision in Dawkins v.
United States, 809 F.3d 953 (7th Cir. 2016), we have circulated it to all
judges in active service in accordance with Circuit Rule 40(e). No judge
in active service requested to hear this case en banc.
2 Prior to Johnson v. United States, 135 S. Ct. 2551 (2015), if a defendant’s
conviction was not one of the enumerated offenses, it still might have
qualified as a violent felony if it “involve[d] conduct that present[ed] a
serious potential risk of physical injury to another.” 18 U.S.C.
(continued … )
4 No. 19-1224
To determine whether a past conviction qualifies as one of
the enumerated offenses, courts employ the categorical ap-
proach:
They compare the elements of the statute form-
ing the basis of the defendant’s conviction with
the elements of the “generic” crime—i.e., the
offense as commonly understood. The prior
conviction qualifies as an ACCA predicate only
if the statute’s elements are the same as, or nar-
rower than, those of the generic offense.
Descamps, 570 U.S. at 257.
The Supreme Court has addressed the definition of ge-
neric burglary under the ACCA on several occasions. In Tay-
lor v. United States, 495 U.S. 575, 598 (1990), the Court held,
for the first time, that burglary as set forth in § 924(e)(2)(B)
meant “‘burglary’ [in] the generic sense in which the term is
now used in the criminal codes of most States.” The Court
further explained that, “[a]lthough the exact formulations
vary, the generic, contemporary meaning of burglary con-
tains at least the following elements: an unlawful or unprivi-
leged entry into, or remaining in, a building or other struc-
ture, with intent to commit a crime.” Id. The Court then
turned to “the problem of applying this conclusion to cases
in which the state statute under which a defendant is con-
victed varies from the generic definition of ‘burglary.’” Id. at
599. It concluded that “the only plausible interpretation of
( … continued)
§ 924(e)(2)(B)(ii). However, Johnson held that this “residual” clause of
§ 924(e)(2)(B) was unconstitutionally vague. 135 S. Ct. at 2563.
No. 19-1224 5
§ 924(e)(2)(B)(ii) is that, like the rest of the enhancement
statute, it generally requires the trial court to look only to the
fact of conviction and the statutory definition of the prior
offense.” Id. at 602. If the statutory definition of the prior
crime of conviction is narrower than generic burglary, or has
“minor variations in terminology,” id. at 599, it qualifies un-
der § 924(e)(2)(B)(ii) as a violent felony. If the definition in
the state statute is broader than generic burglary, for in-
stance, “by eliminating the requirement that the entry be un-
lawful, or by including places, such as automobiles and
vending machines, other than buildings,” a conviction under
that statute would not qualify as a predicate under the
ACCA. Id. This process of comparing the elements of the ge-
neric crime to those set forth in the state statute of conviction
has come to be known as the “categorical approach.”
The Court also spoke directly to the requirements of ge-
neric burglary in Descamps. The precise issue before the
Court in Descamps focused on what legal authorities and
record documents may be used to determine whether an of-
fense qualifies as one of the enumerated generic offenses
under the ACCA. Specifically, the Court addressed whether
a sentencing court may “decide, based on information about
a case’s underlying facts, that the defendant’s prior convic-
tion qualifies as an ACCA predicate even though the ele-
ments of the crime fail to satisfy our categorical test.”
Descamps, 570 U.S. at 258. In Descamps, the Government had
asked the district court to impose an enhanced sentence un-
der the ACCA based in part on the defendant’s conviction
6 No. 19-1224
3
for burglary under California law. The law “provides that a
‘person who enters’ certain locations ‘with intent to commit
grand or petit larceny or any felony is guilty of burglary.’”
Id. at 258–59. The Court noted that the “statute does not re-
quire the entry to have been unlawful in the way most bur-
glary laws do. Whereas burglary statutes generally demand
breaking and entering or similar conduct, California’s does
not: It covers, for example, a shoplifter who enters a store,
like any customer, during normal business hours.” Id. at 259.
“In sweeping so widely,” the Court continued, “the state law
goes beyond the normal, ‘generic’ definition of burglary.” Id.
At the trial level, Descamps had argued that this “asym-
metry of offense elements precluded his conviction … from
serving as an ACCA predicate, whether or not his own bur-
glary involved an unlawful entry that could have satisfied
the requirements of the generic crime.” Id. The district court,
however, had disagreed. Looking beyond the statutory ele-
ments of the offense to Descamps’s actual conduct, the dis-
trict court concluded that Descamps’s conduct satisfied the
generic definition of burglary for purposes of the ACCA.
The Supreme Court, however, held that the district court
had erred in deviating from the categorical approach. The
Court explained that the “modified categorical approach”
employed by the district court “helps implement the cate-
gorical approach when a defendant [has been] convicted of
violating a divisible statute.” Id. at 263. If the statute is not
divisible—does not “comprise[] multiple, alternative ver-
3The law at issue was section 459 of the California Penal Code Annotat-
ed.
No. 19-1224 7
sions of the crime”—the modified categorical approach
simply does not apply. Id. at 262–64. The Court therefore
concluded that, in Descamps’s case, the modified approach
had no role to play because “[t]he dispute here does not con-
cern any list of alternative elements. Rather,” the Court con-
tinued,
it involves a simple discrepancy between ge-
neric burglary and the crime established in
§ 459. The former requires an unlawful entry
along the lines of breaking and entering. The
latter does not, and indeed covers simple shop-
lifting … . In Taylor’s words, then, § 459 “de-
fine[s] burglary more broadly” than the generic
offense. And because that is true—because Cal-
ifornia, to get a conviction, need not prove that
Descamps broke and entered—a § 459 viola-
tion cannot serve as an ACCA predicate.
Whether Descamps did break and enter makes
no difference. And likewise, whether he ever
admitted to breaking and entering is irrelevant.
… We know Descamps’ crime of conviction,
and it does not correspond to the relevant ge-
neric offense. Under our prior decisions, the
inquiry is over.
Id. at 264–65 (citations and parallel citations omitted); see also
Mathis v. United States, 136 S. Ct. 2243, 2248–49 (2016) (ob-
serving that, in Descamps, it had “found that a California
statute swept more broadly than generic burglary because it
criminalized entering a location (even if lawfully) with the
intent to steal, and thus encompassed mere shoplifting”).
8 No. 19-1224
Following Descamps, the Court twice has addressed the
elements of generic burglary. In United States v. Stitt, 139
S. Ct. 399 (2018), the Court considered “whether the statuto-
ry term ‘burglary’ includes burglary of a structure or vehicle
that has been adapted or is customarily used for overnight
accommodation.” Id. at 403–04. The Court held that it does.
The Court noted that it had been “clear in Taylor that Con-
gress intended the definition of ‘burglary’ to reflect ‘the ge-
neric sense in which the term [was] used in the criminal
codes of most States’ at the time the Act was passed.” Id. at
406 (quoting Taylor, 495 U.S. at 598). At that time, “a majority
of state burglary statutes covered vehicles adapted or cus-
tomarily used for lodging—either explicitly or by defining
‘building’ or ‘structure’ to include those vehicles.” Id. Addi-
tionally, Congress
viewed burglary as an inherently dangerous
crime because burglary “creates the possibility
of a violent confrontation between the offender
and an occupant, caretaker, or some other per-
son who comes to investigate.” An offender
who breaks into a mobile home, an RV, a
camping tent, a vehicle, or another structure
that is adapted for or customarily used for
lodging runs a similar or greater risk of violent
confrontation.
Id. (citations omitted) (quoting Taylor, 495 U.S. at 588). The
second case, Quarles v. United States, 139 S. Ct. 1872 (2019),
decided just last term, addressed “[t]he exceedingly narrow
question”
No. 19-1224 9
whether remaining-in burglary[4] (i) occurs on-
ly if a person has the intent to commit a crime
at the exact moment when he or she first unlaw-
fully remains in a building or structure, or (ii)
more broadly, occurs when a person forms the
intent to commit a crime at any time while un-
lawfully remaining in a building or structure.
Id. at 1875. The Court concluded it was the latter. Moving
from general to specific, the Court “sum[med] up” its hold-
ing accordingly:
The Armed Career Criminal Act does not de-
fine the term “burglary.” In Taylor, the Court
explained that “Congress did not wish to speci-
fy an exact formulation that an offense must
meet in order to count as ‘burglary’ for en-
hancement purposes.” And the Court recog-
4 In Quarles v. United States, 139 S. Ct. 1872 (2019), the Court explained
the origin of “remaining-in” burglary. “At common law,” it noted, “bur-
glary was confined to unlawful breaking and entering a dwelling at
night with the intent to commit a felony. But by the time Congress
passed … the current version of § 924(e) in 1986, state burglary statutes
had long since departed from the common-law formulation.” Id. at 1876–
77. By that time, States not only had “cast[] off relics like the requirement
that there be a breaking, or that the unlawful entry occur at night,” but a
majority of States also “prohibited unlawfully ‘remaining in’ a building
or structure with intent to commit a crime. Those remaining-in statutes
closed a loophole in some States’ laws by extending burglary to cover
situations where a person enters a structure lawfully but stays unlawful-
ly—for example, by remaining in a store after closing time without per-
mission to do so.” Id. at 1877; see also infra note 12 (discussing interpreta-
tion of “remaining-in” burglary under Illinois law).
10 No. 19-1224
nized that the definitions of burglary “vary”
among the States. The Taylor Court therefore
interpreted the generic term “burglary” in
§ 924(e) in light of: the ordinary understanding
of burglary as of 1986; the States’ laws at that
time; Congress’ recognition of the dangers of
burglary; and Congress’ stated objective of im-
posing increased punishment on armed career
criminals who had committed prior burglaries.
Looking at those sources, the Taylor Court in-
terpreted generic burglary under § 924(e) to
encompass remaining-in burglary. Looking at
those same sources, we interpret remaining-in
burglary under § 924(e) to occur when the de-
fendant forms the intent to commit a crime at
any time while unlawfully present in a build-
ing or structure.
Id. at 1879 (quoting Taylor, 495 U.S. at 599, 598).
Drawing from these cases, generic burglary requires “at
least the following elements: an unlawful or unprivileged
entry into, or remaining in, a building or other structure,
with intent to commit a crime.” Taylor, 495 U.S. at 598.
“[O]ther structure[s]” include a vehicle “that has been
adapted or is customarily used for overnight accommoda-
tion.” Stitt, 139 S. Ct. at 403–04. Regardless of the type of
structure, however, the entry itself must be unlawful; an in-
tent to later commit a crime or theft, without more, does not
No. 19-1224 11
meet this requirement. Descamps, 570 U.S. at 264–65; Mathis,
5
136 S. Ct. at 2248–49.
B. Illinois Residential Burglary
The next step in the categorical approach requires us to
determine the elements of residential burglary under Illinois
law. Mr. Glispie asserts that, unlike generic burglary, Illinois
residential burglary “does not require an unlawful or unau-
thorized entry, separate and apart from an entry or remain-
6
ing with intent to commit a crime.” To determine the scope
of the Illinois residential burglary statute, we look to the
language of the statute as it has been interpreted by the Illi-
nois courts. See Mathis v. United States, 136 S. Ct. at 2256 (stat-
ing that the “threshold inquiry” whether listed items in a
criminal statute are “elements or means” had been settled by
a decision of the Iowa Supreme Court, and, “[w]hen a ruling
of that kind exists, a sentencing judge need only follow what
5 See also United States v. Mungro, 754 F.3d 267, 271 (4th Cir. 2014) (ob-
serving that, if North Carolina’s law prohibiting “breaking or entering”
“cover[ed] any entry into the building with the intent to commit a crime,
even when a person enters with the building owner’s consent,” then this
might “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’” (quoting Descamps v.
United States, 570 U.S. 254, 275 (2013)); United States v. Hiser, 532 F. App’x
648, 648 (9th Cir. 2013) (holding that the defendant’s two prior convic-
tions for burglary under Nevada law did not qualify as generic burgla-
ries because “Nevada’s burglary statute is facially broader than the ge-
neric definition of burglary because it ‘does not require the entry to have
been unlawful in the way most burglary laws do’” (quoting Descamps,
570 U.S. at 259)).
6 Appellant’s Br. 16.
12 No. 19-1224
it says”); Smith v. United States, 877 F.3d 720, 723 (7th Cir.
2017) (relying on a decision of the Illinois Appellate Court to
conclude that the definition of dwelling under the Illinois
residential burglary statute excludes vehicles other than oc-
cupied trailers and therefore is not broader than generic
7
burglary).
7 We note that, in Descamps, 570 U.S. at 275, the Court “reserve[d] the
question whether, in determining a crime’s elements, a sentencing court
should take account not only of the relevant statute’s text, but of judicial
rulings interpreting it.” However, the Supreme Court has relied explicit-
ly on statutory interpretations by state supreme courts in applying the
categorical and modified categorical approaches. See Mathis v. United
States, 136 S. Ct. 2243, 2256 (2016); Johnson v. United States, 559 U.S. 133,
138 (2010) (stating that the Court was “bound by the Florida Supreme
Court’s interpretation of state law, including its determination of the el-
ements” of Florida battery in assessing whether a conviction under that
statute “meets the definition of ‘violent felony’ in 18 U.S.C.
§ 924(e)(2)(B)(i)”). Additionally, it has been the regular practice of this
court, as well as other Courts of Appeals, to rely on state courts’ interpre-
tations of statutes in addressing questions of the breadth of state law. See,
e.g., Smith v. United States, 877 F.3d 720, 723 (7th Cir. 2017); United States
v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (“To the ex-
tent that the statutory definition of the prior offense has been interpreted
by the state’s highest court, that interpretation constrains our analysis of
the elements of state law.” (citing Johnson, 559 U.S. at 138)); United States
v. Tighe, 266 F.3d 1187, 1196 (9th Cir. 2001) (explaining that “[a] state
court’s interpretation of a statute is binding in determining whether the
elements of generic burglary are present” and adhering to a decision of
the Supreme Court of South Dakota defining the elements of burglary
under the state statute).
No. 19-1224 13
8
The Illinois residential burglary statute provides, in rel-
evant part:
A person commits residential burglary when
he or she knowingly and without authority en-
ters or knowingly and without authority re-
mains within the dwelling place of another, or
any part thereof, with the intent to commit
therein a felony or theft. This offense includes
the offense of burglary as defined in Section
19-1.
720 ILCS 5/19-3(a). Mr. Glispie admits that, “[o]n its face, the
statute appears to require not only that the State prove that a
defendant had intent to commit a crime at the time of entry,
9
but also that the entry be ‘without authority.’” Nevertheless,
he contends that Illinois courts have “effectively … col-
lapsed” the “without authority” element with the “intent to
commit a crime” element with the result that “the State need
not prove unlawful presence apart from proof of the defend-
10
ant’s intent.” This interpretation has its origins in People v.
Weaver, 243 N.E.2d 245, 248 (Ill. 1968).
In Weaver, the defendant had entered a laundromat with
the intent to steal coins from the vending machines inside.
8Mr. Glispie acknowledges that this was the language of the residential
burglary statute at all times relevant to his underlying convictions. See
Appellant’s Br. 13.
9 Id.10Id. at 18 (emphasis removed) (quoting People v. Rudd, 970 N.E.2d 580,
583 (Ill. App. Ct. 2012)).
14 No. 19-1224
He was charged and convicted under the Illinois burglary
11
statute. On appeal, he argued that, because the laundromat
was open to the public at the time in question, “he could
have entered as a business invitee,” and, therefore, his entry
“in the store [wa]s as consistent with his innocence as with
his guilt.” Weaver, 243 N.E.2d at 248. The Supreme Court of
Illinois rejected this argument:
While a common-law breaking is no longer an
essential element of the crime of burglary, the
statute requires an entry which is both without
authority and with intent to commit a felony or
theft. A criminal intent formulated after a law-
ful entry will not satisfy the statute. But au-
thority to enter a business building, or other
building open to the public, extends only to
those who enter with a purpose consistent with
the reason the building is open. An entry with
intent to commit a theft cannot be said to be
within the authority granted patrons of a laun-
dromat.
Id. (citations omitted). Weaver thus established that one who
enters a public building with the intent to commit a crime
11 The Illinois burglary statute provides, in relevant part: “A person
commits burglary when without authority he or she knowingly enters or
without authority remains within a building, housetrailer, watercraft,
aircraft, motor vehicle, railroad car, or any part thereof, with intent to
commit therein a felony or theft. This offense shall not include the of-
fenses set out in Section 4-102 of the Illinois Vehicle Code.” 720 ILCS
5/19-1(a).
No. 19-1224 15
automatically satisfies the unlawful entry requirement of the
Illinois burglary statute.
Since Weaver, the Supreme Court of Illinois and Appel-
late Court of Illinois consistently have applied this princi-
ple—the limited-authority doctrine—to burglary of public
12
establishments. See People v. Blair, 288 N.E.2d 443, 445 (Ill.
12 The Supreme Court of Illinois, however, has held that the lim-
ited-authority doctrine does not apply to burglary by remaining. See Peo-
ple v. Bradford, 50 N.E.3d 1112 (Ill. 2016). In Bradford, the defendant had
been convicted of burglary under 720 ILCS 5/19-1(a) for “knowingly and
without authority remain[ing] within the building of Walmart, with the
intent to commit therein a felony or a theft.’” Id. at 1113–14 (alterations in
original). Before the Supreme Court of Illinois, he argued that he had not
satisfied the elements of the crime because
he never exceeded the scope of his physical authority to
be in the Walmart. He contend[ed] that burglary by re-
maining is not intended to apply to ordinary shoplifting.
Rather, it refers to situations in which a person lawfully
enters a place of business, but, in order to commit a theft
or felony: (1) hides and waits for the building to close;
(2) enters an unauthorized area within the building; or
(3) continues to remain on the premises after being
asked to leave. Since defendant lawfully entered the
Walmart during regular business hours, shoplifted mer-
chandise within public areas of the store, and left while
the store was still open, defendant argues that he com-
mitted retail theft, … rather than burglary … .
Id. at 1117. On the authority of People v. Weaver, 243 N.E.2d 245 (Ill. 1968),
however, the State maintained “that an individual who engages in a ‘dis-
crete act of remaining’ within a store with the intent to commit a theft is
guilty of burglary by remaining.” Bradford, 50 N.E.3d at 1117. The state
supreme court, however, rejected this contention. The court explained
that “it [wa]s not clear what evidence would be sufficient to establish
(continued … )
16 No. 19-1224
1972) (quoting Weaver, 243 N.E.2d at 248, for the proposition
that “authority to enter a business building, or other build-
ing open to the public, extends only to those who enter with
a purpose consistent with the reason the building is open”);
see also People v. Rudd, 970 N.E.2d 580 (Ill. App. Ct. 2012) (ex-
plaining that, “in the context of a building open to the pub-
lic, … the permission to enter does not extend to people who
enter for purposes that are inconsistent with the purpose for
which the building is open to the public,” and, therefore,
( … continued)
that a defendant ‘remains’ within a public place in order to commit a
theft.” Id. at 1118. Extending the doctrine to “remaining-in” burglary also
would “arbitrarily distinguish[] between a defendant who shoplifts one
item in a store and leaves immediately afterwards and a defendant who
shoplifts more than one item or lingers inside a store before leaving.” Id.Consequently, the court concluded that “burglary by remaining includes
situations in which an individual enters a public building lawfully, but,
in order to commit a theft or felony, (1) hides and waits for the building
to close, (2) enters unauthorized areas within the building, or (3) contin-
ues to remain on the premises after his authority is explicitly revoked.”
Id. at 1120 (citations omitted).
After Bradford, one state appellate court interpreted that decision to
eliminate the limited-authority doctrine for unlawful-entry burglary as
well as remaining-in burglary, “effectively overrul[ing]” Weaver and its
progeny. See People v. Johnson, 94 N.E.3d 289, 294 (Ill. App. Ct. 2018).
However, in People v. Johnson, No. 123318, 2019 WL 3559640, at *11 (Ill.
Aug. 1, 2019), the Supreme Court of Illinois reversed the appellate
court’s decision and reaffirmed Weaver. See infra pp. 16–17 (discussing
the decision of the Supreme Court of Illinois in Johnson). In Johnson, 2019
WL 3559640, at *5, the Supreme Court of Illinois explicitly noted that
“none of the concerns expressed in Bradford apply to burglary involving
an unauthorized entry based on the intent to commit retail theft.” See also
infra pp.16–17.
No. 19-1224 17
“the State need not prove unlawful presence apart from
proof of the defendant’s intent”); People v. Smith, 637 N.E.2d
1128, 1131 (Ill. App. Ct. 1994) (observing that “under Illinois
law a burglary can occur during business hours in a building
open to the public” and that such convictions must rest upon
evidence “sufficient to show an intent to commit a felony or
theft at the time of entry onto the premises of the business
establishment”), remanded on other grounds, 643 N.E.2d 198(Ill. 1994). Most recently, in People v. Johnson, No. 123318,
2019 WL 3559640 (Ill. Aug. 1, 2019), the Supreme Court of
Illinois reaffirmed Weaver; it stated:
Weaver construed the current burglary statute
over 50 years ago (and 7 years after it was en-
acted) as granting a patron of a building open
to the public only limited authority to enter the
establishment for a “purpose consistent with
the reason the building is open.” Weaver, 243
N.E.2d [at 248]. And “[a]n entry with intent to
commit a theft cannot be said to be within the
authority granted patrons.” Id. The appellate
court has consistently, and quite correctly, ap-
plied this holding to open retail shops. And
while the General Assembly has amended the
burglary statute a number of times in the
half-century since Weaver was decided, it has
never acted to reverse Weaver and its progeny’s
interpretation of the statute. When the legisla-
ture does not address by way of amendment a
judicial construction of a statute by this court,
it is presumed that the legislature has acqui-
esced in that interpretation and such a con-
18 No. 19-1224
struction becomes as much a part of the statute
as if plainly written into it.
Johnson, 2019 WL 3559640, at *7 (citations and parallel cita-
tions omitted).
The Supreme Court of Illinois also has held that the lim-
ited-authority doctrine applies to the Illinois home-invasion
statute, which, like the residential burglary statute, has as an
element that the defendant “without authority … knowingly
enter[] the dwelling place of another.” 720 ILCS 5/19-6. Spe-
cifically, in People v. Bush, 623 N.E.2d 1361, 1364 (Ill. 1993),
the Supreme Court of Illinois stated:
In [People v. ]Peeples, [616 N.E.2d 294 (Ill. 1993),]
this court stated that when a defendant comes
to a private residence and is invited in by the
occupant, the authorization to enter is limited
and that criminal actions exceed this limited
authority. No individual who is granted access
to a dwelling can be said to be an authorized
entrant if he intends to commit criminal acts
therein, because, if such intentions had been
communicated to the owner at the time of en-
try, it would have resulted in the individual’s
being barred from the premises ab initio. Thus,
the determination of whether an entry is unau-
thorized depends upon whether the defendant
possessed the intent to perform a criminal act
therein at the time entry was granted. If, as in
Peeples, the defendant gains access to the vic-
tim’s residence through trickery and deceit and
with the intent to commit criminal acts, his en-
try is unauthorized and the consent given viti-
No. 19-1224 19
ated because the true purpose for the entry ex-
ceeded the limited authorization granted.
Conversely, where the defendant enters with
an innocent intent, his entry is authorized, and
criminal actions thereafter engaged in by the
defendant do not change the status of the en-
try.
Bush, 623 N.E.2d at 1364 (citations omitted).
Although the Supreme Court of Illinois has applied this
doctrine consistently to entry of public buildings under the
burglary statute and to entry of dwellings under the
home-invasion statute, it never has addressed whether the
doctrine applies to entry of dwellings under the residential
burglary statute, the statute under which Mr. Glispie was
convicted. The issue was raised in People v. Wilson, 614
N.E.2d 1227 (Ill. 1993), but the Supreme Court of Illinois nei-
ther reached nor resolved the issue, see id. at 1231.
13
The majority of Illinois Appellate Courts, however, have
extended this doctrine to the residential burglary statute. See,
e.g., People v. Walker, 547 N.E.2d 1036, 1038–39 (Ill. App. Ct.
1989) (noting that the defendants were permitted into the
victim’s home for a specific purpose, but that the evidence
“established beyond a reasonable doubt that the Caruth
13 The Government argues that decisions from the Supreme Court of Illi-
nois are the only authoritative source for determining the meaning of a
state statute. See Gov’t’s Br. 17. Although it is true that only state su-
preme court cases bind this court, state appellate court decisions never-
theless provide significant guidance. Indeed, in Smith, 877 F.3d at 723,
we relied on an Illinois Appellate Court opinion to determine the “dwell-
ing” requirement of the Illinois residential burglary statute.
20 No. 19-1224
brothers entered with the intent to commit a robbery and
that such entry was unauthorized”); People v. Fisher, 404
N.E.2d 859, 862 (Ill. App. Ct. 1980) (applying doctrine to
burglary of an apartment); see also, e.g., People v. Hodge, No.
5-11-0082, 2012 WL 7070081, at *4 (Ill. App. Ct. Dec. 3, 2012)
(unpublished) (“[A]ssuming arguendo that the State did not
meet its burden of proof regarding the defendant’s authority
to enter the home, this court nevertheless agrees with the
State that the defendant would have forfeited such authority
under the ‘limited authority’ doctrine” because the defend-
ant “had intent to perform a criminal act at the time entry
14
was granted.”).
Despite these authorities, the Government maintains that
there is little indication that the Supreme Court of Illinois
14 Mr. Glispie notes that the second district appellate court is the lone
holdout for requiring “separate proof of unauthorized entry, apart from
a contemporaneous intent to commit a theft or felony.” Reply Br. 13. He
submits, however, that given that appellate court’s decision in People v.
Dillavou, 958 N.E.2d 1118, 1121–22 (Ill. App. Ct. 2011), it “appears to have
fallen in line with its sister districts.” Reply Br. 13. In Dillavou, however,
the defendant was not convicted of residential burglary based on enter-
ing without authority; “[r]ather, defendant was convicted under the sec-
ond part of the residential burglary statute”: “‘knowingly and without
authority remain[ing] within’” the victim’s home. 958 N.E.2d at 1121 (al-
teration in original) (emphasis added). Thus, Dillavou did not address the
critical issue—whether the first prong of the burglary statute requires
“separate proof of unauthorized entry, apart from a contemporaneous
intent to commit a theft or felony.” Indeed, in Dillavou, the court did not
even reach the question whether “the limited-authority doctrine applies
to defendants charged with residential burglary by remaining without
authority.” Id. at 1123. Dillavou, therefore, does not convince us that the
second district appellate court has altered its course.
No. 19-1224 21
would agree with the appellate courts that the lim-
ited-authority doctrine applies to residential burglary. First,
it notes that the Supreme Court of Illinois “expressly de-
15
clined to consider” the issue in Wilson, 614 N.E.2d at 1231.
The Government, however, has not come forward with any
authority suggesting that the court’s action in Wilson—
postponing resolution of an issue until it is necessary for
disposition of a case before it—is evidence that the Supreme
Court of Illinois would be unwilling, in the appropriate case,
to extend the limited-authority doctrine to residential bur-
glary. Second, the Government contends that the state su-
preme court’s discussion in Johnson “emphasized that its ra-
tionale and holding were restricted to the commercial con-
16
text.” This is not surprising, however, because Johnson in-
volved a conviction for burglary of a department store. The
court had neither the opportunity, nor any reason, to speak
in broader terms. Third, the Government submits that there
are “essential differences between commercial establish-
ments and residences, in relation to the presence of other
persons, [that] militate against any assumption that the state
supreme court would apply the limited-authority doctrine to
17
residential burglary.” This argument would have more
force if the Supreme Court of Illinois had not applied the
doctrine to the home-invasion statute. As the Supreme Court
of Illinois already has extended the doctrine to home inva-
sion, however, it is unlikely that it would be persuaded by a
15 Gov’t’s Br. 14.
16 Id. at 27.
17 Id. at 28.
22 No. 19-1224
commercial-residential distinction. Moreover, in Bush, the
Supreme Court of Illinois relied in part on People v. Hudson,
448 N.E.2d 178 (Ill. Ct. App. 1983), for the proposition that
the “interpretation of language ‘without authority’ in [the]
home invasion statute should be consistent with [the] mean-
ing given [the] same language in [the] burglary statute.”
Bush, 623 N.E.2d at 1364. By extension, the “without authori-
18
ty” language in the residential burglary statute should be
given the same meaning as that of the burglary and
19
home-invasion statutes.
18 See supra p.12 (setting forth the language of the residential burglary
statute).
19 The Government also argues that extending the limited-authority doc-
trine to residential burglary would render subsection (a-5) of that statute
superfluous. See Gov’t’s Br. 30. Subsection (a-5), added to the statute in
2010, provides that “[a] person commits residential burglary when he or
she falsely represents himself or herself … for purpose of gaining entry
to the dwelling place of another, with the intent to commit therein a fel-
ony or theft or to facilitate the commission therein of a felony or theft by anoth-
er.” 720 ILCS 5/19-3(a-5) (emphasis added). The Government maintains
that “[a]pplying the limited-authority doctrine to residential burglary,
and thus permitting courts to infer unauthorized entry or remaining
merely from the burglar’s intent, would essentially eliminate the sepa-
rate element of unauthorized entry or remaining from cases under sub-
section (a), rendering subsection (a-5) unnecessary.” Gov’t’s Br. 30–31. If
the limited-authority doctrine applies to residential burglary, there may
be some overlap between subsections (a) and (a-5); nevertheless subsec-
tion (a-5) still would encompass situations that subsection (a) would not.
An individual violates subsection (a-5) when his entry of a dwelling is
either with “intent to commit therein a felony or theft,” or “with the in-
tent … to facilitate the commission therein of a felony or theft by anoth-
er.” Subsection (a-5) therefore encompasses individuals who have no
(continued … )
No. 19-1224 23
Thus, the weight of Illinois cases, as well as principles of
statutory interpretation, suggest that the limited-authority
doctrine applies to residential burglary, just as it does to
burglary and to home invasion. If that is the case, and proof
of “intent to commit … a felony or theft” also satisfies the
element of entering “without authority,” then Illinois resi-
dential burglary is broader than generic burglary under the
20
ACCA and cannot be used as a predicate offense for an in-
creased sentence under the ACCA.
II.
Given the frequency with which this issue arises, the
possible impact of its resolution on Illinois citizens, and the
importance of this issue in the application of the ACCA in
this circuit, we believe the appropriate course of action is to
certify this controlling issue of law to the Supreme Court of
Illinois. The principle impediment to our pursuing this
course is our prior decision of Dawkins v. United States, 809
F.3d 953 (7th Cir. 2016), which addressed the scope of enter-
ing “without authority” under the Illinois burglary statutes.
The Government maintains that Dawkins controls the issue
before us and should not be reconsidered. Mr. Glispie main-
tains that, in light of both the strong evidence that Illinois
recognizes the limited-authority doctrine and our failure to
consider that doctrine in Dawkins, we must revisit that deci-
sion.
( … continued)
intent to commit a crime themselves, but are “casing” the dwelling for
another individual.
20 See supra p.10.
24 No. 19-1224
In Dawkins, the petitioner had pleaded guilty to armed
robbery and had been sentenced as a career offender under
the ACCA on the basis of his prior carjacking and Illinois
burglary convictions. Following his sentence, he sought
permission to file a successive habeas petition on the basis of
Johnson v. United States, 135 S. Ct. 2551 (2015), which held
that the ACCA’s residual clause is unconstitutionally
21
vague. Dawkins maintained that burglary under Illinois
law was broader than generic burglary; specifically, he sub-
mitted that Illinois required only an “entry without authori-
ty” which was broader than the “unlawful entry” required
for generic burglary. Dawkins, 809 F.3d at 955. Because his
Illinois burglary conviction was not encompassed by one of
the specifically enumerated offenses in the ACCA, Dawkins
continued, the now unconstitutional “residual clause” had to
serve as the basis for designating his burglary as a violent
felony under the ACCA. He therefore contended that he was
sentenced under an unconstitutional statute and should
have been granted permission to pursue habeas relief on that
basis.
22
A divided panel of our court denied relief. The majority
held that Dawkins’s petition did not implicate Johnson be-
cause Illinois burglary was not broader than generic burgla-
ry under the ACCA. The majority held that the elements of
residential burglary under Illinois law were indistinguisha-
ble from the generic understanding of burglary: “Illinois
21 See supra note 2.
22 Dawkins’s petition was submitted to the panel on the briefs, without
the benefit of oral argument.
No. 19-1224 25
courts, like federal courts, use terms like unlawfully, unau-
thorized, without consent and without authority inter-
changeably[.]” Id. (collecting cases). Because Illinois burglary
and generic burglary are materially indistinguishable, the
sentencing court did not need to resort to the residual clause
of the ACCA “to determine that Dawkins’ prior conviction
for burglary was a conviction for a crime of violence, for it
was a conviction for ‘burglary’ as defined by the Supreme
Court in the Taylor decision.” Id. at 956.
The dissent believed, however, that the majority decision
failed to undertake the elemental analysis required by the
categorical approach. The dissent explained that Descamps
required that, for a state burglary conviction to qualify as
generic burglary, it must require “the ‘element of breaking
and entering or similar unlawful conduct.’” Id. at 957 (Rip-
ple, J., dissenting) (quoting Descamps, 570 U.S. at 276). In
light of the Supreme Court’s decision in Descamps, the dis-
sent perceived “two significant problems” in Dawkins’s ap-
plication for collateral relief that needed to be “examined by
the district court in more detail.” Id. First, it was unclear
which Illinois burglary statute formed the basis for Daw-
kins’s conviction—the burglary statute or the residential
burglary statute. Second, neither statute had as an element
“breaking and entering,” id., and, indeed, the Supreme
Court of Illinois had held that “a common-law breaking is no
longer an essential element of the crime of burglary,” id. at
958 (quoting Weaver, 243 N.E.2d at 248). In light of the lan-
guage used in Descamps, the dissent believed that it was nec-
26 No. 19-1224
essary to reassess our prior assumption that Illinois burglary
23
qualified as generic burglary under the ACCA.
We agree with Mr. Glispie that our reasoning in Dawkins
does not reflect the elemental analysis required by the cate-
gorical approach. Our consideration of the scope of the un-
23 Smith, 877 F.3d 720, also addressed the issue whether a residential
burglary in Illinois qualified as generic burglary for purposes of the
ACCA. In Smith, the district courts had read Dawkins “as conclusively
establishing that residential burglary in Illinois satisfies Taylor.” Id. at
722. We concluded otherwise: “[T]he only question addressed in Dawkins
was whether residential burglary in Illinois includes the element of
breaking and entering; we answered yes.” Id. We went on to consider
whether the Illinois offense includes as an element “entering a ‘building
or other structure’” as required by Taylor, 495 U.S. at 598. The defendants
had argued that, because Illinois residential burglary requires entry of a
“dwelling place of another,” and dwelling place is defined as “a house,
apartment, mobile home, trailer, or other living quarters,” the Illinois
statute is broader than the generic offense. Smith, 877 F.3d at 722–23
(quoting 720 ILCS 5/19-3(a) and 720 ILCS 5/2-6(b), respectively). We re-
jected that argument. We explained that Taylor “set out to create a federal
common-law definition of ‘burglary’” and therefore “counsel[ed] against
reading its definition as if it were a statute.” Id. at 723. In Taylor, we con-
tinued, the Court was attempting to get to a common understanding of
burglary. By the time Taylor was handed down, most states had amend-
ed their burglary statutes to cover trailers and mobile homes. We
thought “it unlikely that the Justices set out in Taylor to adopt a defini-
tion of generic burglary that is satisfied by no more than a handful of
states—if by any.” Id. at 724. We concluded that “[p]eople 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 criminals.” Id. at
725. Smith, therefore, did not rely, or build directly, upon our holding in
Dawkins.
No. 19-1224 27
authorized entry requirement began and ended with the ob-
servation that “Illinois courts, like federal courts, use terms
like unlawfully, unauthorized, without consent, and without
authority interchangeably[.]” Dawkins, 809 F.3d at 955. This
would be persuasive reasoning if the cases on which we
rested our analysis actually had considered the underlying
meanings of those terms. The bulk of the cases, however,
contained no such analysis; indeed, most compared other
elements of generic and statutory burglary or focused on a
different issue altogether. See, e.g., United States v.
Ramirez-Flores, 743 F.3d 816, 822–23 (11th Cir. 2014) (holding
that, given the lack of case law interpreting the South Caro-
lina burglary statute, it was not plain error for the court to
consider the statute divisible, and, applying the modified
categorical approach, the district court did not err in con-
cluding that the burglary conviction involved entry into the
victim’s residence); United States v. Constantine, 674 F.3d 985,
990 (8th Cir. 2012) (rejecting defendant’s argument that
“burglary” under the ACCA should be limited to residential
burglary), abrogated on other grounds by United States v. McAr-
thur, 850 F.3d 925 (8th Cir. 2017); United States v. Bonilla, 687
F.3d 188, 192–93 (7th Cir. 2012) (holding that, where defend-
ant had conceded that “all of the Taylor elements—unlawful
entry, of a building or other structure, and the requisite in-
tent to commit a felony”—were satisfied, the fact that, under
Texas law, the intent to commit a felony could be formulated
before or after the unlawful entry did not take it outside of
generic burglary).
The two cases on which we relied in Dawkins and that
did address the scope of “unauthorized” and “unlawful” en-
tries raise serious questions about the validity of our analyti-
cal approach in Dawkins and suggest that we need to consid-
28 No. 19-1224
er carefully Mr. Glispie’s submission. In United States v.
Tighe, 266 F.3d 1187 (9th Cir. 2001), the defendant had ar-
gued that a prior conviction for burglary under South Dako-
ta law did not qualify as generic burglary because the statute
“omits any reference to the required entry being unlawful or
unprivileged.” Id. at 1196. The Ninth Circuit acknowledged
that there was “no mention of the lawfulness of the entry” in
the text of the statute and that it therefore appeared that the
statute fell outside the generic definition of burglary. Id. It
noted, however, that the Supreme Court of South Dakota
had interpreted the statute to include “the element of ‘un-
lawful or unauthorized entry,’” separate from the element of
intent, which brought it within the generic definition. Id.Similarly, in United States v. Lujan, 9 F.3d 890 (10th Cir. 1993),
the defendant had argued that an “unauthorized entry” re-
quired for his New Mexico burglary conviction could “mean
anything and d[id] not necessarily rise to the level of unlaw-
ful or unprivileged entry” required for generic burglary. Id.
at 892. The Tenth Circuit noted that, in Taylor, the Court had
relied on the Model Penal Code definition of burglary,
which reads: “A person is guilty of burglary if he enters a
building or occupied structure, or separately secured or oc-
cupied portion thereof, with purpose to commit a crime
therein, unless the premises are at the time open to the public or
the actor is licensed or privileged to enter.” Id. (internal quota-
tion marks omitted). Under New Mexico law, however, a
person was not guilty of burglary if he merely “enter[ed] a
store open to the public with intent to … commit larceny.”
Id. (internal quotation marks omitted). “Thus,” the court
concluded, “‘unauthorized entry’ as used in the New Mexico
burglary statute and in Mr. Lujan’s indictment necessarily
No. 19-1224 29
ha[d] the same meaning as ‘unlawful or unprivileged entry’
in Taylor[.]” Id.In sum, when issues concerning the scope of “unlawful
or unprivileged entry” were raised in these cases, the courts
critically assessed the scope of the relevant state law before
determining that the generic element was satisfied. Dawkins
does not contain the rigorous elemental analysis found in
these two cases. We are confident, moreover, that had we
undertaken that same critical analysis in Dawkins as our sis-
ter circuits did in Tighe and Lujan, we would have ended up
where we are today: facing the critical question whether,
under Illinois law, the limited-authority doctrine applies to
residential burglary, effectively collapsing the “unauthor-
ized entry” and “intent to commit … a felony” requirements,
and taking it outside of the definition of generic burglary.
As we have noted, we believe that Illinois case law, as
well as its principles of statutory interpretation, generally
point to the conclusion that the Supreme Court of Illinois
would apply the limited-authority doctrine to the residential
burglary statute. However, Illinois appellate courts have not
been unanimous in their extension of this doctrine to resi-
24
dential burglary, and application of the doctrine may affect
the interpretation of other sections of the Illinois residential-
25
burglary and home-invasion statutes. “Certification of a
controlling issue of state law to the highest court of the state
is one method of reducing the possibility of error” in trying
to predict what course the state supreme court might choose.
24 See supra note 14.
25 See supra note 19.
30 No. 19-1224
See Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 638 (7th Cir.
2002).
Circuit Rule 52 provides that
[w]hen the rules of the highest court of a state
provide for certification to that court by a fed-
eral court of questions arising under the laws
of that state which will control the outcome of
a case pending in the federal court, this court,
sua sponte or on motion of a party, may certify
such a question to the state court in accordance
with the rules of that court, and may stay the
case in this court to await the state court’s deci-
sion of the question certified.
Certification to the Supreme Court of Illinois is proper when
“there are involved in any proceeding before [the Seventh
Circuit] questions as to the law of this State, which may be
determinative of the said cause, and there are no controlling
precedents in the decisions of this court.” Ill. S. Ct. R. 20(a).
Here, the question whether the limited-authority doctrine
applies to residential burglary will determine whether the
district court erred in sentencing Mr. Glispie as a career of-
fender. No controlling precedent of the Supreme Court of
Illinois answers this question. We therefore respectfully ask
the Supreme Court of Illinois to answer the question wheth-
er, and if so under what circumstances, the limited-authority
doctrine applies to its residential burglary statute, 720 ILCS
5/19-3.
The Clerk of this Court will transmit the briefs and ap-
pendices in this case, together with this opinion, to the Su-
preme Court of Illinois. On the request of that Court, the
No. 19-1224 31
Clerk will transmit all or any part of the record as that Court
so desires.
QUESTION CERTIFIED