THERESA L. SPRINGMANN, District Judge.
This matter is before the Court on the Defendant's Motion to Dismiss 18 U.S.C. § 924(e) Allegations Contained in Count 1 and Count 2 [ECF No. 44], filed on July 7, 2016. For the reasons set forth in this Opinion and Order, the Court grants the Defendant's Motion.
On June 24, 2015, the Government filed a two-count Indictment [ECF No. 1], charging the Defendant with being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Counts 1 and 2 allege that the Defendant possessed a firearm on two separate dates; Count 1 applies to conduct that occurred on or about February 26, 2015 and Count 2 applies to conduct that occurred on or about April 1, 2015. In each count, the Government also charged the Defendant under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides, in relevant part: "[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years." Both counts of the Indictment included the following predicate offenses for an enhanced punishment under § 924(e):
(Indictment 1-2, ECF No. 1.)
On July 7, 2016, the Defendant filed a Motion to Dismiss 18 U.S.C. § 924(e) Allegations Contained in Count 1 and Count 2 [ECF No. 44], arguing that in light of Mathis v. United States, 136 S.Ct. 2243 (2016), the Defendant's three burglary convictions cannot serve as ACCA predicate offenses. On July 21, 2016, the Government filed its Response [ECF No. 46]. On July 26, 2016, the Defendant filed his Reply [ECF No. 47]. With this matter fully briefed, the Court grants the Defendant's Motion to Dismiss.
To be sufficient, an indictment must "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). It must also cite to the applicable statute. Id. The Seventh Circuit has stated that an indictment "must fulfill three distinct functions. First, the indictment must state all of the elements of the crime charged; second, it must adequately apprise the defendant of the nature of the charges so that he may prepare a defense; and third, it must allow the defendant to plead the judgment as a bar to any future prosecutions for the same offense." United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000).
A defendant may allege that an indictment is defective for "failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B)(v). "Challenging an indictment is not a means of testing the strength or weakness of the government's case, or the sufficiency of the government's evidence." United States v. Moore, 563 F.3d 583, 586 (7th Cir. 2009) (quoting United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006)). "To successfully challenge the sufficiency of an indictment, a defendant must demonstrate that the indictment did not satisfy one or more of the required elements and that he suffered prejudice from the alleged deficiency." United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013) (citing United States v. Dooley, 578 F.3d 582, 589-90 (7th Cir. 2009)). Ultimately, the question on a motion to dismiss is not whether the indictment alleges sufficient facts from which a jury could find guilt, but rather whether the government conceivably could produce such evidence at trial. United States v. Castor, 558 F.2d 379, 384 (7th Cir. 1977).
The Defendant argues that his burglary convictions are not violent felonies because Indiana burglary, Ind. Code § 35-43-2-1, is broader than the elements of generic burglary. Specifically, the Defendant asserts that the ability to commit burglary under section 35-43-2-1 by breaking or entering through a fence means it does not constitute generic burglary under the ACCA. In response, the Government contends that the Defendant's claim is meritless because section 35-43-2-1 matches generic burglary under the ACCA, as fences are fixed-in-place structures. Accordingly, the question before the Court is whether a fence is a "structure" that falls within the ACCA's generic burglary.
Under the ACCA, a "`violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that—"
18 U.S.C. § 924(e)(2)(B)(emphasis added). The italicized portion of the statute, known as the residual clause, was held unconstitutional. Johnson v. United States, 135 S.Ct. 2551, 2557-58, 2563 (2015). Therefore, if a defendant is sentenced under the ACCA, his previous convictions must qualify under the force clause, § 924(e)(2)(B)(i), or the four enumerated offenses, id. § (ii); Johnson, 135 S. Ct. at 2563.
The Government does not argue that Indiana burglary satisfies the force clause, and thus only asserts that burglary under section 35-43-2-1 is identical to burglary as enumerated in the ACCA. The ACCA, however, does not define burglary. "The Supreme Court, recognizing that the definition of burglary varies significantly from state to state, has adopted a uniform, generic definition of burglary for the purposes of § 924(e)." United States v. King, 62 F.3d 891, 896 (7th Cir. 1995). With this understanding that Congress referred only to the "generic versions" of burglary, arson, and extortion—"not to all variants of the offenses"—burglary means "a crime `contain[ing] the following elements: an unlawful or unprivileged entry into . . . a building or other structure, with intent to commit a crime.'" Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) (quoting Taylor v. United States, 495 U.S. 575, 598 (1990)).
A crime is a predicate "burglary" offense under the ACCA "if its elements are the same as, or narrower than, those of the generic offense. But if the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA `burglary'—even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries." Id. at 2248. When presented with an indivisible statute, a court examines it by using the categorical approach, under which the court "lines up that crime's elements alongside those of the generic offense and sees if they match." Id.; United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008) (stating that the most innocent conduct penalized under the statute must match or be narrower than the generic offense to qualify as a "crime of violence" under the categorical approach (citing Taylor, 495 U.S. at 599-601)).
Separately, the modified categorical approach is used when a statute is divisible, meaning that a single statute defines multiple crimes by listing elements in the alternative. Id. at 2249 (explaining that this method, and its resort to the indictment, jury instructions, or plea agreement and colloquy, is used because the sentencing court needs to determine which alternative element was the basis of the defendant's conviction). A divisible statute is distinct from one that merely "enumerates various factual means of committing a single element." Id. The latter, to which the categorical approach still applies, exists when, for example, a burglary statute itemizes "the various places that crime could occur as disjunctive factual scenarios rather than separate elements, so that a jury need not make any specific findings (or a defendant admissions) on that score." Id. at 2249-50, 2253-54. Further, a legislative drafter's decision to not enumerate the various means, and instead leave those means implicit, does not alter the court's approach. Id. at 2256.
In this case, the parties agree that the categorical approach applies to section 35-43-2-1. The Court also agrees. In Indiana, "[a] person who breaks and enters the building or structure of another person, with the intent to commit a felony or theft in it, commits burglary, a [Class C] felony." Ind. Code § 35-43-2-1 (emphasis added).
The Indiana jury instruction for burglary confirms that section 35-43-2-1 is an alternatively phrased statute that lists means and is subject to the categorical approach. Indiana Pattern Jury Instruction No. 4.1100 (4th ed. 2016) informs a jury that
This drafting means that a jury could convict a defendant of burglary even if some jurors did not think the defendant broke and entered a building, provided that those unconvinced jurors still thought the defendant broke and entered a structure. Mathis, 136 S. Ct. at 2249, 2257 ("Suppose, for example, that one count of an indictment and correlative jury instructions charge a defendant with burgling a `building, structure, or vehicle,'—thus reiterating all the terms of Iowa's law. That is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt."). Therefore, "the Court may ask only whether the elements of the state crime and generic offense make the requisite match." Id. at 2256.
The Government argues that section 35-43-2-1, which requires entry into a "building or structure," is not broader than ACCA generic burglary, which reaches a "building or other structure." Taylor, 495 U.S. at 598. For the Government, Indiana's acceptance of fenced-in areas as a means to satisfy this element does not conflict with ACCA generic burglary because a fence is stationary, unlike a boat or automobile that is mobile. In Mathis, the Supreme Court held that Iowa's burglary statute, which reaches "any building, structure, [or] land, water, or air vehicle," cannot support an ACCA sentence because, under the categorical approach, some means of fulfilling the Iowa statute's locational element do not satisfy the generic definition. 136 S. Ct. at 2250, 2257 (alteration in original and internal quotation marks omitted) (quoting Iowa Code § 702.12). Although remarking that "buildings and other structures, but not vehicles[,] satisfy the generic definition," the Court did not elaborate on exactly where the dividing line falls.
Even if burglary of "a boat or motor vehicle" is not generic burglary, Shepard v. United States, 544 U.S. 13, 15-16 (2005), here, the Government has not cited any authority that holds a fenced-in area fits within generic burglary. Rather, to support this proposition, the Government cites United States v. Brooks, 468 F. App'x 623 (7th Cir. 2012) (unpublished order), and United States v. Thornton, 463 F.3d 693 (7th Cir. 2006). These cases do not construe Indiana's burglary statute, and both simply reiterate that a state burglary statute encompassing boats and cars is not generic burglary. See Brooks, 468 F. App'x at 626; Thornton, 463 F.3d at 701. In a nonprecedential order decided pre-Johnson, which is not cited by the parties, the Seventh Circuit remarked that Indiana Code § 35-43-2-1 fits the definition of generic burglary announced in Taylor. United States v. Vogt, 588 F. App'x 497, 498 (7th Cir. 2015) (unpublished order). However, the issue before the Court was whether the defendant's three burglary convictions should have been treated as one predicate offense given their temporal proximity, and the Court did not elaborate on the overlap between section 35-43-2-1 and Taylor in the process of granting counsel's Anders motion. Vogt, 588 F. App'x at 497-98; see also United States v. Jennings, 210 F.3d 376, at *1 (7th Cir. 2000) (unpublished table decision) (granting counsel's Anders motion because the Indiana statute in effect at the time of the defendant's convictions for "burglary of a business" contained the basic elements outlined in Taylor).
Despite the parties not directing the Court to any controlling authority that discusses fenced-in areas and generic burglary, other Circuits have addressed this issue. In United States v. Wenner, the Ninth Circuit asked whether Washington's residential burglary statute is a "`crime of violence' under the Sentencing Guidelines." 351 F.3d 969, 971 (9th Cir. 2003). In answering "no," the court stated that, under Washington law, a "`building' can include a fenced area, a railway car, or a container." Id. at 972 (citing Wash. Rev. Code § 9A.04.110(5)). Because these "things . . . are not buildings or structures under federal law," the Washington burglary conviction "cannot support a conviction for generic `burglary' under Taylor." Id. at 972-73 ("[B]urglarizing a fenced area that doubles as a dwelling is a residential burglary under Washington law, but not a `burglary' under Taylor . . . ."); see also United States v. Cloud, ___ F. Supp. 3d. ____, No. 2:10-CR-2077-RMP, 2016 WL 3647785, at *6-8 (E.D. Wash. June 24, 2016) (holding, post-Mathis, that Washington State residential burglary and second-degree burglary are broader than generic burglary, and thus cannot be a predicate "crime of violence" under the Sentencing Guidelines); Murray v. United States, No. 15-CV-5720 RJB, 2015 WL 7313882, at *1, *3-4 (W.D. Wash. Nov. 19, 2015) (applying Wenner and vacating defendant's status as an armed career criminal after he pled guilty to an indictment charging violations of 18 U.S.C. §§ 922(g)(1) and 924(e)(1)).
The Third Circuit also reached a similar conclusion when analyzing Pennsylvania's burglary statute. The court found that Pennsylvania defined "occupied structure . . . broader than Congress's generic view of burglary," in part, because Pennsylvania burglary "extended to businesses, which are not always confined to structures made up of walls and a roof." United States v. Bennett, 100 F.3d 1105, 1109 (3d Cir. 1996). To illustrate why this definition made Pennsylvania's statute conflict with the definition in Taylor, the court cited Commonwealth v. Hagan, 654 A.2d 541, 541, 543-44 (Pa. 1995), which affirmed a burglary conviction for "unlawful entry of [a] fenced-off outdoor storage area. Bennett, 100 F.3d at 1109; see also United States v. Davis, 689 F.3d 349, 356-57 (4th Cir. 2012) (holding that a West Virginia burglary statute is broader than generic burglary as defined in Taylor after noting that West Virginia criminalizes entry of "industrial or public utility property enclosed by a fence").
This refusal by various Circuits to hold that generic burglary includes fenced-in areas is consistent with the Supreme Court's guidance, which acknowledged that a Florida burglary statute that encompassed curtilage took the statute "outside the definition of `generic burglary' set forth in Taylor." James v. United States, 550 U.S. 192, 212-213 (2007) (holding that the statute nevertheless qualified as a predicate offense under the residual clause), overruled by Johnson, 135 S. Ct. at 2551. Of particular relevance, James noted that in Florida, curtilage "requir[es] `some form of an enclosure,'" and a yard being surrounded by trees is insufficient to render the area curtilage. James, 550 U.S. at 213 (quoting State v. Hamilton, 660 So.2d 1038, 1044 (Fla. 1995)). This language has been interpreted as stating that "curtilage is defined narrowly in Florida to require a fenced-in area." United States v. Phillips, 752 F.3d 1047, 1053 (6th Cir.) (Rogers, J., dissenting) ("When pilfering a few stray eggs from the fenced yard of a chicken coop is considered `violent,' the term `violent' becomes unmoored from its meaning. . . . Such a holding extends the ACCA far beyond the archetypal home invasion that Congress most likely contemplated . . . ."), cert. denied, 135 S.Ct. 464 (2014) (mem.).
In light of this authority, combined with Indiana's well-established holdings that a fence may be a "structure" under Indiana Code § 35-43-2-1, McCovens, 539 N.E.2d at 29, the Defendant's three burglary convictions may not be cited as ACCA predicate offenses.
For the foregoing reasons, the Court GRANTS the Defendant's Motion to Dismiss 18 U.S.C. § 924(e) Allegations Contained in Count 1 and Count 2 [ECF No. 44].
SO ORDERED.
