For a law that was rewritten 40 years ago, a version of Missouri’s second-degree burglary statute dating to the 1970s sure is causing the 8th U.S. Circuit Court of Appeals a lot of disagreement.

In a 2-1 ruling on July 3, an appellate panel said a Missouri defendant’s 1977 conviction for second-degree burglary isn’t a “violent felony” for sentencing purposes.

In 1991, the 8th Circuit had looked at the same statute and said it was a violent felony. But subsequent U.S. Supreme Court decisions have “cast into doubt” the approach in that earlier ruling, Judge David R. Stras wrote. Judge James B. Loken dissented, however, arguing that the majority was effectively overruling the 1990 U.S. Supreme Court case that had prompted the 8th Circuit to rule on the issue in the first place.

“This we may not do,” he wrote.

Defendant Jerry Brown pleaded guilty in 2007 to being a felon in possession of a firearm. Under the Armed Career Criminal Act, he was given a 15-year prison sentence because he had three previous convictions for crimes deemed to be violent felonies.

Brown now argues that he should have gotten only a 10-year sentence. His 1977 conviction for breaking into the Oregon County high school building, he argued, didn’t qualify as a violent felony.

One of the enumerated offenses under the ACCA is “burglary,” but the statute doesn’t define it. In a 1990 case from Missouri, Taylor v. U.S., the Supreme Court said courts should apply a “generic” version of the offense: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”

The issue in Taylor — and in Brown’s case almost three decades later — was whether Missouri’s old statute fit that generic definition. From 1969 to 1978, the statute prohibited breaking and entering into “any building . . . or any booth or tent, or any boat or vessel, or railroad car in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal or commit any crime therein.”

One way to read the statute is that each location is a separate element of the crime that the state has to prove at trial. Under that reading, a defendant convicted of burglarizing a building would be guilty of the generic (and therefore violent) version of the crime. But someone who broke into a boat or a tent would not.

Alternatively, the various locations can be read to be examples of the ways in which the crime of burglary could be committed. Under that reading, Missouri’s 1977 statute would be too broad to fall under the ACCA’s definition of burglary.

In 1991, the 8th Circuit went with the first reading. The state dug up the defendant’s old conviction records and concluded that he’d been convicted specifically of breaking into a building. As a result, the court said at the time, the conviction could be considered a violent felony under such circumstances.

Since then, however, the U.S. Supreme Court has ruled in several cases that if any of the means by which a defendant can commit a crime fall outside the definition of the generic offense, then it isn’t a violent felony — even if the facts of the defendant’s case qualify as the generic crime.

Stras, joined by Judge L. Steven Grasz, said those intervening decisions meant the 8th Circuit no longer was bound by its 1991 decision. But Loken’s dissent said the court should be bound by the underlying 1990 U.S. Supreme Court precedent.

The high court’s ruling dealt with a man who had multiple felony convictions, including two Missouri second-degree burglary convictions from 1963 and 1971. At that time, the state had seven different statutes that covered different burglary situations — including the version that mentions boats and booths. It wasn’t clear from the record which specific statutes he’d been convicted under, so the Supreme Court remanded the case for a determination.

In doing so, however, the Supreme Court said “in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction.”

Loken (who was a member of the 8th Circuit at the time of the original Taylor case but not on the panel that decided it) said the relevant records in the two cases were “identical.”

“Thus, the ACCA issue is controlled by the Supreme Court’s holding in Taylor and this court’s application of that holding on remand,” he argued. He added that Taylor has never been repealed and was cited by ​​the high court as recently as June 10.

The majority opinion responded that the Supreme Court couldn’t have decided that issue because the defendant’s charging documents didn’t come into the record until after the Supreme Court remanded the case.

“At no point did the Court hold or imply that the statute here — even though it was among the seven discussed in Taylor — satisfied the definition of generic burglary,” Stras wrote.

The case is Brown v. U.S., 17-1420.

By Scott Lauck | Missouri Lawyers Weekly​