United States v. John Foster

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1703
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN FOSTER,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cr-00033-SEB-DML-1 — Sarah Evans Barker, Judge.
____________________
ARGUED NOVEMBER 14, 2017 — DECIDED DECEMBER 8, 2017
____________________
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
PER CURIAM. The Armed Career Criminal Act (ACCA), 18
U.S.C. § 924(e), imposes a 15-year minimum sentence on de-
fendants convicted of illegally possessing a firearm, see id.
§ 922(g)(1), who also have at least three prior convictions for
a “violent felony” or a “serious drug offense.” Id. § 924(e)(1).
After John Foster pleaded guilty to illegal gun possession un-
der § 922(g)(1), the district court considered him to have three
such qualifying convictions and sentenced him to 15 years in
2 No. 17-1703
prison. Foster does not contest that two of his prior convic-
tions qualify under ACCA. Those convictions were for deal-
ing in methamphetamine (a serious drug offense), and Indi-
ana robbery, a violent felony, see United States v. Duncan,
833 F.3d 751, 752 (7th Cir. 2016). Foster argues only that his
past conviction for burglary—specifically Indiana’s Class B
burglary of a dwelling—was not a violent felony and thus he
did not have the requisite convictions for the sentencing en-
hancement. But his argument is foreclosed by United States v.
Perry, 862 F.3d 620, 624 (7th Cir. 2017), so we affirm.
ACCA defines "violent felony" in relevant part as any fel-
ony that “is burglary.” 18 U.S.C. § 924(e)(2)(B)(ii). The term
"burglary" in § 924(e)(2)(B)(ii), however, refers only to crimes
that fit within "generic" burglary, which the Supreme Court
has defined as "an unlawful or unprivileged entry into, or re-
maining in, a building or other structure, with intent to com-
mit a crime." Taylor v. United States, 495 U.S. 575, 598 (1990).
Determining whether burglary under a given state's law is a
violent felony presents a categorical question that focuses ex-
clusively on the state crime's elements and not on the facts
underlying the conviction. Mathis v. United States, 136 S. Ct.
2243, 2248 (2016). The state crime’s elements must be the same
as, or narrower than, the elements of generic burglary, so that
the crime covers no more conduct than the generic offense. Id.
Foster’s conviction is for a Class B felony burglary com-
mitted in Indiana in 1988. Indiana’s criminal code at the time
separated burglary into three classes of felony. Class C was
the broadest burglary crime; Class B and Class A punished
more severely burglaries committed with specific aggravat-
ing facts. The classes were defined as follows:
No. 17-1703 3
A person who breaks and enters the building or
structure of another person, with intent to com-
mit a felony in it, commits burglary, a Class C
felony. However, the offense is a Class B felony
if it is committed while armed with a deadly
weapon or if the building or structure is a dwell-
ing, and a Class A felony if it results in either
bodily injury or serious bodily injury to any per-
son other than a defendant.
IND. CODE § 35-43-2-1 (1986). The word “dwelling” was de-
fined elsewhere in the code as “a building, structure, or other
enclosed space, permanent or temporary, movable or fixed,
that is a person’s home or place of lodging.” IND. CODE § 35-
41-1-10 (1986); see also IND. CODE § 35-31.5-2-107 (2017)
(same).
We recently held in United States v. Perry, 862 F.3d 620, 624
(7th Cir. 2017), that Indiana Class C burglary is a violent fel-
ony because it is at least as narrow as generic burglary. Be-
cause Class B burglary is a narrower, more serious offense
than Class C burglary, it must therefore also be a violent fel-
ony. See Taylor, 495 U.S. at 599 (noting conviction under nar-
rower state statute “necessarily implies that the defendant has
been found guilty of all the elements of generic burglary”). A
Class B burglary conviction is narrower because a defendant
must be found guilty of all the elements of Class C burglary,
and thus of generic burglary, plus another element—that he
did so “while armed with a deadly weapon” or in a “building
or structure [that] is a dwelling.” See Brown v. State,
580 N.E.2d 329, 331 (Ind. Ct. App. 1991) (“Burglary as a
4 No. 17-1703
class C felony is an inherently included lesser offense of bur-
glary as a class B felony.”). 1
To all this Foster replies that the word “dwelling” in the
Indiana code is broader than the generic “building or struc-
ture” of Taylor because Indiana defines “dwelling” to include
“other enclosed space[s], permanent or temporary, movable
or fixed.” But Foster’s argument about the breadth of “dwell-
ing” reads out of the burglary statute the limitation that the
crime is a Class B felony only “if the building or structure is a
dwelling,” IND. CODE § 35-43-2-1 (1986) (emphasis added).
Class B burglary requires that the location burglarized be
both a “building or structure” and a “dwelling.” See Maxwell
v. State, 408 N.E.2d 158, 162 (Ind. Ct. App. 1980) (listing
“building or structure” and “dwelling” as separate elements
of Class B burglary); INDIANA PATTERN CRIMINAL JURY
INSTRUCTION No. 4.17 (same). “Building or structure” is the
broader term under Indiana law, and Class C burglary the
broader crime. See Goodpaster v. State, 402 N.E.2d 1239, 1242
(Ind. 1980) (“[O]ne may burglarize a ‘building or structure’
without necessarily burglarizing a ‘dwelling.’”). Because any
burglary of a “building or structure” comprises generic bur-
glary, Class B burglary must also be generic.
Furthermore, because only places that are both a “building
or structure” and a “dwelling” come within Class B burglary,
it does not matter how broadly Indiana defines “dwelling.”
The definition of dwelling that Foster highlights is a general
1 Although Indiana amended its burglary statute in 1999, between
when Foster and Perry were each convicted, the decision in Perry did not
rely on any amended portion of the statute. Foster does not present, and
we have not found, any reason for that amendment to lead to a different
result here.
No. 17-1703 5
one for Indiana’s criminal code. It also applies to statutes that
do not share burglary’s requirement that the dwelling be a
building or structure. See, e.g., IND. CODE § 35-43-1-1 (arson);
id. § 35-43-2-1.5 (residential entry); id. § 35-45-4-5 (voyeur-
ism). Indiana could rationally seek to punish burning, enter-
ing, or peeping into dwellings that are not buildings or struc-
tures, but not choose to punish breaking into those spaces as
any class of burglary. And, just as in Perry, Foster has not
identified any case in which Indiana prosecuted the burglary
of a dwelling that was not a building or structure. Perry,
862 F.3d at 624.
Foster concedes that Perry correctly decided that all of the
locations that Indiana considers to be a “building or struc-
ture” are included in the scope of generic burglary. Perry, 862
F.3d at 624. So too must the subset of those locations that are
also dwellings. Thus Perry fully resolves this case: Indiana
Class B burglary is a violent felony and the district court
therefore properly applied ACCA’s enhancement to Foster’s
sentence.
AFFIRMED.