United States v. Jose Henriquez

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4238
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE HERBERT HENRIQUEZ,
Defendant − Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00504-RWT-1)
Argued: January 28, 2014 Decided: June 27, 2014
Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.
Vacated and remanded by published opinion. Judge Wynn wrote the
majority opinion, in which Chief Judge Traxler joined. Judge
Motz wrote a dissenting opinion.
ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Kelly O. Hayes, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WYNN, Circuit Judge:
Under the United States Sentencing Guidelines, judges may
increase the sentences of defendants previously convicted of
violent crimes. Generic burglary has been deemed a crime of
violence sufficient to support such an enhanced sentence. At
issue in this case is whether first degree burglary in Maryland
constitutes a generic burglary, i.e., a crime of violence that
can support a sentence enhancement under United States
Sentencing Guidelines Section 2L1.2(b)(1)(A)(ii). Our careful
review leads us to conclude that it does not. We hold that
Maryland’s courts have construed Maryland’s first degree
burglary statute more broadly than the Supreme Court’s
definition of generic burglary. Specifically, there is a
realistic probability that Maryland’s statute covers burglaries
of motor vehicles or boats—places that the United States Supreme
Court has expressly excluded from generic burglary.
Accordingly, we vacate Defendant’s sentence, which the district
court enhanced based on Defendant’s prior conviction of first
degree burglary in Maryland, and remand for resentencing.
I.
Jose Herbert Henriquez (“Defendant”) pled guilty without a
plea agreement to one count of unlawfully reentering the United
States in violation of 8 U.S.C. § 1326(a) and (b)(2). His
2
adjusted offense level was calculated to be 24, which consisted
of a base offense level of 8, plus a 16-level enhancement under
United States Sentencing Guidelines (“U.S.S.G.”) Section
2L1.2(b)(1)(A)(ii). The offense that triggered the 16-level
enhancement was Defendant’s 2000 Maryland conviction of first
degree burglary, which the presentence report (“PSR”) called a
crime of violence. Over Defendant’s objection, the district
court applied the enhancement and sentenced Defendant to 41
months of imprisonment. 1
In explaining its decision to apply the enhancement, the
district court noted that U.S.S.G. Section 2L1.2(b)(1) “says
burglary of a dwelling[,]” and that the Maryland statute “is
four square within the language of the applicable Guideline
Section 2L1.2 as ‘burglary of a dwelling.’” J.A. 80–81. The
district court also explained that “Maryland retains the more
traditional” definition of burglary and “has not chosen to
expand it to any old structure.” J.A. 80.
Defendant filed a timely appeal and raises the same
argument that he made below: that a conviction of first degree
burglary in Maryland is not a crime of violence because
1
The PSR recommended, and the district court granted, a 3-
level reduction for Defendant’s acceptance of responsibility.
The resulting 41-month sentence was within the Guidelines range
of 41 to 51 months for Defendant’s total offense level of 21 and
criminal history category of II.
3
Maryland’s definition of burglary exceeds the scope of generic
burglary as defined by the United States Supreme Court.
Specifically, Defendant argues that first degree burglary in
Maryland lacks a necessary element of generic burglary—that the
crime take place in a building or structure. Defendant contends
that because Maryland has not limited the term “dwelling” to
buildings or structures, one could be convicted in Maryland of
burglarizing boats or motor vehicles, which are enclosures that
the Supreme Court has expressly excluded from the definition of
generic burglary. Upon careful review, we must agree with
Defendant.
II.
A defendant convicted of illegally reentering the United
States is subject to a sentencing enhancement if, before his
removal, he had been convicted of a “crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines definition of
“crime of violence” specifically includes “burglary of a
dwelling.” U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii). Whether
a prior conviction qualifies as a crime of violence is a legal
question that we review de novo. United States v. Bonilla, 687
F.3d 188, 190 (4th Cir. 2012), cert. denied, 134 S. Ct. 52(2013).
4
A.
In Taylor v. United States, 495 U.S. 575 (1990), the
Supreme Court considered whether “burglary” constituted a
“violent felony” under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). 2 The Supreme Court sought to tease out “some
uniform definition independent of the labels employed by the
various States’ criminal codes.” Taylor, 495 U.S. at 592. The
Court held that “[a]lthough the exact formulations vary, the
generic, contemporary meaning of burglary contains 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.” Id. at 598. The Supreme Court noted that
“there is no problem” for convictions in states whose
definitions of burglary are the same as—or narrower than—this
generic definition. Id. at 599. But the same could not be said
of states that “define burglary more broadly, e.g., . . . by
including places, such as automobiles[,]” i.e., places “other
than buildings.” Id.Fifteen years later, the Supreme Court stated even more
clearly that the ACCA “makes burglary a violent felony only if
2
Although Taylor pertained to the ACCA, we apply the same
analysis to the question of whether a particular crime
constitutes a “crime of violence” under the Guidelines. See
United States v. Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012).
5
committed in a building or enclosed space (‘generic burglary’),
not in a boat or motor vehicle.” Shepard v. United States, 544
U.S. 13, 15-16 (2005). Although Taylor and Shepard both
involved the ACCA’s enumerated crime of “burglary,” rather than
the Guidelines’ enumerated crime of “burglary of a dwelling” at
issue here, this Court has nonetheless applied Taylor’s
definition of generic burglary to the Guidelines’ inquiry, “with
the additional requirement that a burglary qualifying as a
‘crime of violence’ must involve a dwelling.” Bonilla, 687 F.3d
at 190–91 n.3 (citing, inter alia, United States v. Wenner, 351
F.3d 969, 973 (9th Cir. 2003) (“[T]he most logical and sensible
reading of the Guidelines . . . is to construe ‘burglary of a
dwelling’ as the Taylor definition of burglary, with the
narrowing qualification that the burglary occur in a
dwelling[.]”)). Thus, before applying the enhancement in
U.S.S.G. Section 2L1.2(b)(1)(A)(ii) to a defendant who
previously had been convicted of burglary, a sentencing court
must satisfy itself that the defendant’s prior burglary
conviction entailed the “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. The sentencing court
also must ensure that the burglary occurred in a dwelling,
Bonilla, 687 F.3d at 190 n.3, and that the dwelling was not a
6
boat, motor vehicle, or other enclosure that is excluded from
the definition of generic burglary, Shepard, 544 U.S. at 16.
Further, we employ the categorical approach here because
“the crime of which the defendant was convicted has a single,
indivisible set of elements.” Descamps v. United States, 133 S.
Ct. 2276, 2282 (2013). Our analysis is thus “restricted to ‘the
fact of conviction and the statutory definition of the prior
offense.’” United States v. Aparicio-Soria, 740 F.3d 152, 154
(4th Cir. 2014) (en banc) (quoting Taylor, 495 U.S. at 603).
Finally, federal courts have no “authority to place a
construction on a state statute different from the one rendered
by the highest court of the State.” Johnson v. Fankell, 520
U.S. 911, 916 (1997). Rather, “[t]o the extent 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.” Aparicio-Soria, 740
F.3d at 154. With this legal framework in mind, we now turn to
the text of Maryland’s first degree burglary statute and the way
in which the Maryland Court of Appeals has interpreted it.
B.
Section 6-202 of Maryland’s criminal code provides that
“[a] person may not break and enter the dwelling of another with
the intent to commit theft or a crime of violence.” Md. Code
Ann., Crim. Law § 6-202(a). The statute does not define the
7
term “dwelling,” and it was not until 2008 that the Maryland
Court of Appeals, Maryland’s highest court, considered
“precisely what is meant by a ‘dwelling[.]’” McKenzie v. State,
962 A.2d 998, 1001 (Md. 2008). After determining that “the
General Assembly intended the meaning of ‘dwelling,’ insofar as
the burglary statutes are concerned, to be subject to ongoing
clarification in the case law[,]” id. at 1002, Maryland’s high
court reviewed opinions by the intermediate court, the Maryland
Court of Special Appeals, id. at 1003–07.
The Court of Appeals explained that the intermediate court
had developed the following test for determining whether a place
was a dwelling under Maryland’s burglary statutes:
“The test as to whether or not a building is a
dwelling house is whether or not it is used regularly
as a place to sleep. No building becomes a dwelling
by reason of the fact that someone may sleep there on
rare occasions or take an occasional nap there[.]”
Id. at 1003 (quoting Poff v. State, 241 A.2d 898, 900 (Md. Ct.
Spec. App. 1968)) (internal quotation marks omitted). The Court
of Appeals described how the intermediate court applied that
test in 1983 to hold that a recreational vehicle was a dwelling
under Maryland’s daytime housebreaking statute, and it recounted
the intermediate court’s explanation:
[T]he “crucial factor” is “whether [the structure] is
a place intended to be used, and in fact is used, as
an abode and place for humans to sleep. . . . The
paramount interest that [the daytime housebreaking
statute] seeks to protect is the right of human
8
habitation to be free from the terror of an invader.
Accordingly, it matters not what type of facility the
individual chooses to use for his habitation, so long
as he intends it to be his abode and so uses it.”
Id. at 1005 (quoting Kanaras v. State, 460 A.2d 61, 71 (Md. Ct.
Spec. App. 1983)).
To be sure, McKenzie involved the question of whether a
temporarily unoccupied apartment constituted a “dwelling.” It
did not squarely present the question at issue here: whether an
enclosure that is excluded from the federal definition of
generic burglary—such as a boat or motor vehicle—can be a
“dwelling” under Maryland’s burglary statutes. But nothing in
McKenzie indicates that the Court of Appeals found fault with
the intermediate court’s reasoning quoted above—reasoning that
expressly captured recreational vehicles and easily could cover
those boats and motor vehicles that people intend to use, and do
use, as their dwellings.
Rather, the Maryland Court of Appeals has embraced a notion
of the term “dwelling” that renders its first degree burglary
statute broader than the Supreme Court’s “generic burglary”
definition. This is demonstrated by the Maryland high court’s
explicit adoption of “the reasoning and holding of the New
Jersey Supreme Court in [State v. Scott, 776 A.2d 810 (N.J.
2001)].” Id. at 1007. The Maryland Court of Appeals explained
that Scott defined “‘dwelling’ as ‘a place where a person
9
resides and sleeps[,]’” id. at 1006 (quoting Scott, 776 A.2d at
814), and that Scott “is generally in line with the Court of
Special Appeals’ opinions we have discussed.” Id. at 1007.
We, therefore, must conclude that Maryland’s definition of
a “dwelling” as used in its first degree burglary statute is a
place where a person resides and sleeps. We decline to impose
on this definition a limiting construction that would exclude
boats or motor vehicles—enclosures not covered by the federal
definition of generic burglary. And although we have found no
Maryland Court of Appeals case that has defined a dwelling as a
boat or motor vehicle—enclosures clearly outside the scope of
the generic definition—such a case is unnecessary for our
conclusion. We instead assess “whether there is a realistic
probability” that Maryland “would apply its statute to conduct
that falls outside the generic definition of” burglary. United
States v. Perez-Perez, 737 F.3d 950, 955 (4th Cir. 2013)
(quotation marks omitted).
We conclude that there is a realistic probability that
Maryland would apply its first degree burglary statute to
conduct that falls outside the Supreme Court’s definition of
“generic burglary.” This conclusion is well-supported because
the Maryland Court of Appeals has not limited the term
“dwelling” to a building or structure. Further, the Maryland
Court of Special Appeals has held a recreational vehicle to be a
10
dwelling—a holding that the Court of Appeals discussed and in no
way rejected when it had the chance to do so in McKenzie.
We turn now to an examination of the parties’ arguments.
III.
Defendant makes the simple argument that Maryland’s courts
have construed the term “dwelling” broadly enough to convict a
person of burglarizing an enclosure excluded from the federal
definition of generic burglary. Because the categorical
approach precludes federal courts from looking to the facts
underlying a prior conviction, a sentencing court would have no
way to ensure that a first degree burglary conviction in
Maryland did not involve an excluded enclosure—such as a boat or
motor vehicle. Therefore, Defendant argues, the district court
erred in applying the 16-level enhancement under Guidelines
Section 2L1.2(b)(1)(A)(ii) for his prior conviction of first
degree burglary in Maryland. For the reasons already discussed,
we agree.
The Government counters that we should affirm Defendant’s
sentence because “Maryland’s first-degree burglary statute fits
well within the definition of ‘burglary of a dwelling’ for
purposes of” Guidelines Section 2L1.2(b)(1)(A)(ii). Appellee’s
Br. at 11. The Government’s argument is similar to the
reasoning of the district court, which concluded that the
11
Maryland statute Defendant was convicted of violating “is four
square within the language of the applicable Guideline Section
2L1.2 as ‘burglary of a dwelling.’” J.A. 80.
The Government further contends that Taylor stands for the
proposition that the definition of burglary under the ACCA is
broader than the common law definition of burglary. And, as
noted by the Supreme Court in Taylor, Maryland is “one of the
few [states] . . . maintaining the narrow, more restrictive
common-law definition” of burglary. Appellee’s Br. at 11.
Consequently, the Government argues, “Maryland’s offense of
first-degree burglary . . . fits squarely within the definition
of ‘burglary’ as defined in Taylor.” Id. We reject the
Government’s arguments.
It is true that Maryland’s first degree burglary statute
criminalizes the “burglary of a dwelling” in terms that exactly
match those used in the commentary to the sentencing enhancement
at issue here. Compare Md. Code Ann., Crim. Law § 6-202(a),
with U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii). A mere
comparison of the language, however, does not end the inquiry
because the Maryland statute does not define the term
“dwelling.” We must, therefore, compare the Maryland state
courts’ application of the statute to the federal definition of
generic burglary. As explained above, the ACCA “makes burglary
a violent felony only if committed in a building or enclosed
12
space (‘generic burglary’), not in a boat or motor vehicle.”
Shepard, 544 U.S. at 15–16. If a defendant could be convicted
of burglarizing a dwelling that happens to be a boat or motor
vehicle, Shepard precludes the application of the sentencing
enhancement in Guidelines Section 2L1.2(b)(1)(A)(ii) to such a
conviction.
It is easily conceivable that Defendant’s first degree
burglary conviction from 2000 involved one of Shepard’s
precluded structures: a boat or a motor vehicle. As noted, the
Court of Special Appeals has already deemed a recreational
vehicle a dwelling. Kanaras, 460 A.2d at 71. And if a dwelling
is nothing more than “‘a place where a person resides and
sleeps[,]’” such a place may well be a houseboat, particularly
in a state with as much waterfront as Maryland, or even a car.
McKenzie, 962 A.2d at 1006 (quoting Scott, 776 A.2d at 814).
Yet the United States Supreme Court has clearly excluded such
enclosures from the definition of generic burglary and,
consequently, from application of the crime of violence
enhancement. Shepard, 544 U.S. at 16.
We are also unpersuaded by the Government’s argument that
Maryland’s first degree burglary statute must be “narrow[er],”
and thus, within, the generic definition of burglary because the
Supreme Court in Taylor “specifically cited Maryland as one of
four [s]tates that retained th[e] common-law definition” of
13
burglary. Appellee’s Br. at 10. Put simply, the Supreme
Court’s mentioning of Maryland’s burglary law nearly twenty-five
years ago does not negate the need for federal sentencing courts
to undertake the analysis described above. Since 1990, when
Taylor was decided, Maryland’s highest court has indicated that
the elements of the statute codifying that state’s burglary
offenses are “subject to ongoing clarification in the case law.”
McKenzie, 962 A.2d at 1002. What’s more, the Supreme Court’s
decision in Shepard “makes burglary a violent felony only if
committed in a building or enclosed space (‘generic burglary’),
not in a boat or motor vehicle.” Shepard, 544 U.S. at 15–16.
And at least one defendant in Maryland has had his conviction
for daytime housebreaking upheld after the Court of Special
Appeals determined that a recreational vehicle constituted a
“dwelling” for the purposes of Maryland’s burglary laws—a
holding expressly recognized and left untouched by the Maryland
Court of Appeals in McKenzie. Kanaras, 460 A.2d at 71.
In sum, we conclude that Maryland’s first degree burglary
statute encompasses “conduct that falls outside the generic
definition” of burglary. Perez-Perez, 737 F.3d at 955
(quotation marks omitted). As a consequence, a Maryland
conviction of first degree burglary cannot constitute a crime of
violence for purposes of Guideline Section 2L1.2(b)(1)(A)(ii).
14
The district court erred by applying that enhancement, and
Defendant’s sentence must be vacated.
IV.
For the foregoing reasons, we vacate and remand Defendant’s
sentence.
VACATED AND REMANDED
15
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:
There is much with which I agree in the fine majority
opinion. I agree that “generic burglary” has been deemed a
crime of violence sufficient to support an enhanced federal
sentence. I agree that we employ the categorical approach to
determine whether first-degree burglary in Maryland criminalizes
no more than “generic burglary.” I agree that the majority
correctly states the elements of “generic burglary” and
correctly applies those elements to the Guidelines context.
Finally, I agree that, as a federal court, we have no authority
“to place a construction on a state statute different from the
one rendered by the highest court of the State.” Johnson v.
Fankell, 520 U.S. 911, 916 (1997). Indeed, it is precisely for
these reasons that I must respectfully dissent. For in
concluding that Maryland’s first-degree burglary statute
criminalizes more than “generic burglary,” the majority does
“place a construction” on that statute “different from the one
rendered” by Maryland’s highest court.
I.
In Taylor v. United States, the Supreme Court sought to
provide, for purposes of a federal sentencing predicate, a
“uniform definition [of burglary] independent of the labels
employed by the various States’ criminal codes.” 495 U.S. 575,
16
592 (1990). Before settling on a “generic, contemporary meaning
of burglary,” id. at 598, the Court considered the traditional,
common-law definition of burglary, i.e., the breaking and
entering of a dwelling at night, with intent to commit a felony.
In the course of doing so, the Court noted that common-law
burglary is “the core, or common denominator” of contemporary
burglary, id. at 592, and cited Maryland as a rare example of a
state that has retained the narrow, common-law meaning or
“something closely resembling” it, id. at 593 n.6.
Because most other states had expanded the definition of
burglary beyond its common-law origins (e.g., to include
unlawful entry during daytime and into structures other than
dwellings), the Taylor Court adopted a definition of “generic
burglary” that is broader than common-law burglary.
Accordingly, the Court held that “generic burglary” includes
“unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime.”
Id. at 599. Immediately after adopting this broader, generic
definition, the Court made clear that it includes common-law
burglary. The Court explained that “burglary convictions in
common-law States” categorically qualify as sentencing
predicates because “the conviction necessarily implies that the
defendant has been found guilty of all the elements of generic
burglary.” Id.17
Although Taylor focused on the meaning of “burglary” under
the Armed Career Criminal Act (“ACCA”), we apply Taylor’s
generic definition in the Guidelines context as well, with the
added requirement that the burglary involve a dwelling. See
United States v. Bonilla, 687 F.3d 188, 190-91 n.3 (4th Cir.
2012); see also U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (defining
“crime of violence” to include “burglary of a dwelling”). Thus,
because the categorical approach governs our inquiry here,
Henriquez’s Maryland conviction for first-degree burglary
qualifies as a prior crime of violence if it contains the
following elements: (1) an unlawful or unprivileged entry into
(2) a building or other structure (3) that is a dwelling, with
(4) intent to commit a crime.
II.
Maryland’s first-degree burglary statute provides that a
“person may not break and enter the dwelling of another with
intent to commit theft or a crime of violence.” Md. Code Ann.,
Crim. Law § 6-202(a). This definition would seem, as the
Supreme Court suggested in Taylor, to fit comfortably within the
definition of “generic burglary.” Yet my colleagues hold to the
contrary because, while they recognize that the Maryland
definition requires entry into a “dwelling,” they contend that
Maryland courts have construed the term “dwelling” broadly.
18
They say that under Maryland law a dwelling need not be a
“building or other structure” as required by Taylor, but can be
a motor vehicle or boat. With respect, I believe they have
misread Maryland law.
“The common law felony of burglary crossed the seas from
England and became a part of the common law of Maryland.”
Warfield v. State, 554 A.2d 1238, 1247 (Md. 1989). For
centuries burglary remained a common-law offense in Maryland;
only recently has the Maryland General Assembly adopted the
statutory definition set forth above. McKenzie v. State, 962
A.2d 998, 1000 (Md. 2008). State statutes still do not define
“dwelling,” but do instruct that the term “retains its
judicially determined meaning.” Md. Code Ann., Crim. Law § 6-
201. Under Maryland law, when a term “‛retains its judicially
determined meaning,’ it is subject to continued clarification in
case law.” McKenzie, 962 A.2d at 1001.
In 2008, Maryland’s highest court, the Court of Appeals,
addressed the meaning of “dwelling” for purposes of the state’s
burglary statutes and made clear that the common-law definition
of the term continues to control. Id. Indeed, the McKenzie
court expressly noted that “the meaning of ‘dwelling house’ [i]s
the same as its common law meaning for burglary purposes.” Id.
at 1003; see also id. at 1002 & 1002 n.1 (explaining that if a
term “is not otherwise defined by statute, the common law
19
meaning is assumed to be intended” and noting that “Maryland’s
statutory offense of burglary in the first degree is most akin
to common law burglary, without the element of ‘in the
nighttime.’”). Thus, although the meaning of “dwelling” is
“subject to continued clarification in case law,” id. at 1001,
Maryland’s highest court has recently explained that Maryland
defines “dwelling” as it was defined at common law. And because
generic burglary covers “at least the ‘classic’ common-law
definition” of the crime, Taylor, 495 U.S. at 593 (emphasis
added), Maryland first-degree burglary necessarily constitutes a
crime sufficient to support an enhanced federal sentence.
My friends in the majority resist this straightforward
conclusion on the ground that McKenzie indicates that in
Maryland “a dwelling is nothing more than ‘a place where a
person resides and sleeps,’” and so, assertedly, encompasses
boats and motor vehicles. Supra at 13. But, in fact, McKenzie
neither holds nor suggests this. Rather, the McKenzie court
expressly observed that “[t]he test as to whether or not a
building is a ‘dwelling house’ is whether or not it is used
regularly as a place to sleep. No building becomes a ‘dwelling’
by reason of the fact that someone may sleep there on rare
occasions or take an occasional nap there.” McKenzie, 962 A.2d
at 1003 (quoting Poff v. State, 241 A.2d 898, 900 (Md. App.
20
1968)) (emphases added and alteration omitted). 1 In Maryland,
therefore, a person may be convicted of first-degree burglary
only if he unlawfully enters a building or structure and that
building or structure is a dwelling.
To be sure, Maryland courts have repeatedly stressed that a
“dwelling,” for burglary purposes, is a place where one resides
and regularly sleeps. See id. at 1003-06 (canvassing Maryland
case law). But they do so not because a dwelling need not be a
building or structure. Rather, it is because “[c]ommon law
burglary and, by extension, Maryland’s statutes prohibiting
burglary of the ‘dwelling of another,’ are crimes against
habitation.” Id. at 1002 (citing W. Blackstone, 4 Commentaries
169; R. Perkins & R. Boyce, Criminal Law, ch. 3 § 1 (3d ed.
1982); W. LaFave & A. Scott, Substantive Criminal Law, § 8.13(c)
(1986)). Unlike the more expansive generic definition of
burglary, which covers all buildings and structures, common-law
(and so Maryland) burglary covers only buildings and structures
used as a “dwelling.” See LaFave & Scott at § 8.13(c). And,
under Maryland law “[a] structure does not become a dwelling
until someone occupies it.” McKenzie, 962 A.2d at 1002.
1
Notably, in its three-page discussion of the term
“dwelling,” the McKenzie court recognized more than twenty-five
times that, for purposes of Maryland burglary law, a “dwelling”
is a “building” or “structure,” or a unit within a “building” or
“structure.” See id. at 1003-05.
21
Maryland courts, moreover, have consistently rejected
efforts to stretch the definition of “dwelling” beyond its
narrow origins. Maryland’s intermediate appellate court, the
Court of Special Appeals, for example, has held that basements
of apartment buildings, vacant apartment rooms, furnished but
never occupied homes, warehouses, and churches are not
“dwellings” within the meaning of the state’s burglary statutes.
Id. at 1003-05 (collecting cases); see also Sizemore v. State,
272 A.2d 824, 827 (Md. App. 1971) (“a church is not a dwelling
house”). By contrast, any one of those places would satisfy the
generic definition of burglary. See W. LaFave, 3 Substantive
Criminal Law § 21.1 (2d ed. 2003) (explaining that contrary to
the common-law requirement that burglary involve a dwelling,
“statutes today typically use a much broader term, such as
‘building’ or ‘structure’”). In sum, Maryland’s requirement
that a “dwelling” be a place where one resides and sleeps
renders it narrower, not broader, than Taylor’s buildings and
structures. 2
2
For the same reason, State v. Scott, 776 A.2d 810 (N.J.
2001), is no help to the majority. Like Maryland, New Jersey
follows the common law meaning of “dwelling.” Id. at 814(explaining that because the New Jersey legislature failed to
define ‘dwelling,’ the court must “consider the common-law
definition of that term”). Moreover, the jury in Scott was
expressly instructed to “make a determination whether, one, [the
temporarily unoccupied apartment in question] was a structure,
and two, whether the structure was a dwelling.” Id. at 812.
22
Nothing in Kanaras v. State, 460 A.2d 61 (Md. App. 1983) is
to the contrary. In Kanaras, the Court of Special Appeals held
that a stationary motor home that had, for several weeks, been
parked at a campground and hooked up to electrical and plumbing
services, was a “dwelling” for burglary purposes. Id. at 71-72.
The court noted that burglary law was “developed for the purpose
of protecting the habitation of an individual,” and that a
“dwelling” must therefore be a place where one lives and sleeps.
Id. at 69. But, Kanaras recognized, a “dwelling” need not be a
“permanent structure so long as persons intend to live in the
structure and in fact use it as an abode for human habitation.”
Id. at 71 (emphases added). Thus, although the Kanaras court
stated that “it matters not what type of facility the individual
chooses to use for his habitation,” it did so simply to
underscore that a “dwelling” need not be “a formal traditional
mortar and brick” home so long as it is otherwise a building or
structure. Id.Furthermore, the Kanaras court was careful to confine its
holding to the “facts before” it. Id. at 72; see also McKenzie,
962 A.2d at 1005 (explaining that Kanaras was rooted in the
common law and confined to the “facts presented”). It
specifically cautioned: “We do not hold that under all
circumstances a motor home is a dwelling house.” Id. at 72.
Rather, it noted that it “might reach a different result” under
23
different facts –- e.g., had the motor home been “simply parked
on a street rather than a campsite” and not “connected to health
conveniences.” Id. at 71. By emphasizing that the motor home
was “stationary and connected for electrical and sanitary
conveniences,” the Kanaras court made clear that it was a
“structure” affixed to the ground, and therefore qualified as a
“dwelling.” Id. Not only did the court not extend the
definition of dwelling to boats and cars, it expressly warned
that a car or other vehicle, “used as a vehicle primarily for
transportation purposes, should not be regarded as a dwelling
house, even if occasionally used for sleeping.” Id. at 69
(emphasis added). 3
Kanaras, in short, did not stretch the meaning of
“dwelling” to motor vehicles or boats. Instead, it faithfully
followed the common-law definition of “dwelling,” construing the
term as a “building or other structure,” Taylor, 495 U.S. at
599, in which a person resides and sleeps. Indeed, the trial
3
I note that my colleagues’ suggestion that “dwelling”
encompasses cars would render superfluous a separate, more
specific Maryland statute. See Md. Code Ann., Crim. Law § 6-206(forbidding the “breaking and entering [of a] motor vehicle”).
This, of course, is at odds with Supreme Court instruction that
we avoid construing a statute in a way that renders another more
specific statute superfluous. See, e.g., RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012).
24
court in Kanaras expressly instructed the jury that “a dwelling
house refers to a structure which is used regularly as a place
to sleep” and that “[i]n order to find the defendant
guilty . . . you must find that the camper or motor home was a
structure regularly used as a place to sleep.” 460 A.2d at 72(emphases added). If, as the majority holds, entry into a
“structure” was not an element of burglary under Maryland law,
this jury instruction would have been erroneous. That the
Kanaras court held that the trial judge “did not err” in “giving
[this] instruction” removes any doubt as to the question whether
a “dwelling,” for purposes of Maryland’s burglary statutes,
requires entry into a “building or other structure.” 4
III.
In sum, Maryland’s first-degree burglary statute tracks the
common law and so is “narrower than the generic” definition
developed in Taylor, 495 U.S. at 598. Henriquez’s conviction
4
Thus, in United States v. Martin, No. 12-5001, -- F.3d --
(4th Cir. 2014), we recently held that Maryland’s fourth-degree
burglary statute -- which provides in relevant part that “[a]
person may not break and enter the dwelling of another,” Md.
Code Ann., Crim. Law § 6-205(a) -- does not qualify as generic
burglary because it “does not require that the defendant have
the intent to commit a crime when he enters the dwelling.” Id.
at *5-6. Neither Martin’s lawyer nor the court suggested that
the Maryland statute did not constitute generic burglary
because, pursuant to Maryland law, a “dwelling” need not be a
“building or other structure.”
25
thus “necessarily implies that [he] has been found guilty of all
the elements of generic burglary.” Id. at 599. Accordingly,
that conviction categorically qualifies as a proper federal
sentencing predicate. I would affirm.
26