United States v. Hutchinson

27 F.4th 1323

UNITED STATES of America, Plaintiff - Appellee

v.Carlos Dejuan HUTCHINSON, Defendant - Appellant

No. 20-3116

United States Court of Appeals, Eighth Circuit.

Submitted: September 22, 2021

Filed: March 3, 2022

Dillan Ray Edwards, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff - Appellee.

Samuel Owen Cross, Heather Quick, Assistants Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Defendant - Appellant.

Carlos Dejuan Hutchinson, Pro Se.

Before KELLY, ERICKSON, and GRASZ, Circuit Judges.

ERICKSON, Circuit Judge.

Carlos Dejuan Hutchinson ("Hutchinson") pled guilty to possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and (g)(3). The district court¹ found that Hutchinson had three prior qualifying felony convictions and imposed an enhanced sentence under the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e). Specifically, the district court found that Hutchinson's three burglary convictions under Texas Penal Code Ann. § 30.02(c)(2)² qualified as "violent felony" predicate offenses. Hutchinson appeals, contending the court erred because the definition of "burglary" in Texas Penal Code Ann. § 30.02(a) is broader than the generic definition of "burglary" in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). We disagree and affirm the district court.

I. BACKGROUND

Following a traffic stop on October 12, 2019, in Cedar Rapids, Iowa, Hutchinson was subjected to a lawful search during which officers found a pistol and ammunition in his jeans’ pockets. Hutchinson was charged with one count of possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and (g)(3). He entered into a plea agreement with the government and consented to preparation of a pre-plea presentence investigation report (the "PSIR").

Noting Hutchinson's three prior Texas burglary convictions, the PSIR recommended that Hutchinson be sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e)(1). The indictments underlying two of the three convictions alleged Hutchinson not only intended to unlawfully enter the habitations, but he also had the intent to commit theft therein.

Hutchinson objected to the PSIR's recommendation, contending his Texas convictions did not qualify as predicate offenses because Texas's burglary statute is indivisible and Texas Penal Code Ann. § 30.02(a) does not contain the requisite "specific intent" element required under Taylor, 495 U.S. at 599, 110 S.Ct. 2143. See Texas Penal Code Ann. § 30.02(a)(3) (defining "burglary" to include the elements of "enter[ing] a building or habitation [without the effective consent of the owner] and commit[ting] or attempt[ing] to commit a felony, theft, or an assault").

The district court rejected Hutchinson's argument, concluding Hutchinson's convictions were qualifying predicate offenses because Texas Penal Code Ann. § 30.02(a)(3) has an inherent specific intent requirement. The district court relied on the Fifth Circuit's reasoning in United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) (en banc), cert. denied, ––– U.S. ––––, 141 S. Ct. 273, 208 L.Ed.2d 36 (2020), which determined that Texas Penal Code Ann. § 30.02(a)(3) ’s elements of "burglary" are generic and that convictions thereunder may be "qualifying predicates for a sentence enhancement under the ACCA." Herrold, 941 F.3d at 182.

On September 28, 2020, the district court sentenced Hutchinson to the mandatory minimum term of fifteen years’ imprisonment set forth in 18 U.S.C. § 924(e)(1). Hutchinson appeals.

II. ANALYSIS

The issue before us is whether the district court erred when it determined Texas Penal Code Ann. § 30.02(a)(3) requires the government to prove that the defendant "inten[ded] to commit a crime" after his or her unlawful entry. Taylor, 495 U.S. at 599, 110 S.Ct. 2143 (defining the elements of generic burglary). We review the district court's legal findings on this issue de novo . See United States v. Vanoy, 957 F.3d 865, 867 (8th Cir. 2020).

Burglary qualifies as an enumerated predicate offense for purposes of the ACCA when the state law requires the following generic elements: "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599, 110 S.Ct. 2143 ; see Descamps v. United States, 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (stating that Taylor set forth the rule for determining whether a prior conviction qualifies as an enumerated predicate offense under the ACCA). We begin the analysis by applying a categorical approach to determine whether the statute meets the "generic" definition of "burglary." In so doing, we consider the language of the statute and not the particular facts underlying the defendant's prior offenses. Descamps, 570 U.S. at 261, 133 S.Ct. 2276.

Texas Penal Code Ann. § 30.02(a) provides:

A person commits an offense [of burglary] if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

Texas Penal Code Ann. § 30.02(a) (West 2017).

Because § 30.02(a) lists alternative ways that burglary may be committed, we also analyze the divisibility of the statute. The question we consider in this analysis is whether the statute "list[s] elements in the alternative" and criminalizes multiple actions, which would render the statute divisible; or, whether the statute "sets out a single (or ‘indivisible’) set of elements to define a single crime." Mathis v. United States, 579 U.S. 500, 136 S. Ct. 2243, 2248–49, 195 L.Ed.2d 604 (2016). If the statute is indivisible, then we utilize the "categorical approach" and "line[ ] up that crime's elements alongside those of the generic offense and see[ ] if they match." Id. at 2248. If, on the other hand, the statute defines multiple crimes as a divisible statute, then we apply the "modified categorical approach," which would allow us to review the record from the Texas court that convicted Hutchinson in order to determine which subsection of § 30.02(a) served as the basis for Hutchinson's conviction and whether his conviction met the generic elements. Id. at 2249.

While the district court did not make an express finding on the divisibility of § 30.02(a), it adopted the reasoning of the Court of Appeals for the Fifth Circuit in Herrold, which found that the statute was indivisible. 941 F.3d at 177. Neither party has raised any meaningful arguments to contest this finding. By its plain language, the statute is set forth in the disjunctive, and, as found by the Texas Court of Appeals, it identifies three alternative ways by which a person may commit the single crime of burglary. See Martinez v. State, 269 S.W.3d 777, 783 (Tex. Ct. App. 2008) (holding that the Texas Legislature did not intend to create "distinct criminal offenses" under Texas Penal Code Ann. § 30.02(a)(1) and § 30.02(a)(3) ).

Next, when determining whether § 30.02(a)(3) requires the government to prove the defendant had the intent to cause a specific unlawful result after a non-consensual entry, we note that the Fourth and Fifth Circuits have held it does. See United States v. Pena, 952 F.3d 503, 510–11 (4th Cir. 2020) ("[W]e conclude that Texas burglary qualifies as generic burglary as defined in Taylor "); United States v. Bonilla, 687 F.3d 188, 193 (4th Cir. 2012) (noting that § 30.02(a)(3) ’s element of an attempted or completed crime inherently requires an intent to commit that crime), cert. denied, 571 U.S. 829, 134 S.Ct. 52, 187 L.Ed.2d 47 (2013) ; see also Herrold, 941 F.3d at 179 ("Texas law rejects Herrold's no-intent interpretation").

This Court briefly analyzed a similar question in an unpublished decision and concluded that Texas Penal Code Ann. § 30.02(a) ’s definition of "burglary" met the generic definition even though the definition of "habitation" included a "vehicle that is adapted for the overnight accommodation of persons." United States v. Wallis, 100 F.3d 960 (8th Cir. 1996) (per curiam) (quoting Texas Penal Code Ann. § 30.01(1) ) (internal quotation marks omitted). Consistent with our previous decision and finding persuasive the Fourth and Fifth Circuits’ decisions, we conclude that Texas Penal Code Ann. § 30.02(a)(3) contains the generic specific intent requirement necessary for a conviction under this statute to qualify as a predicate offense for purposes of the ACCA.

Hutchinson has not demonstrated a "realistic probability" that Texas Penal Code Ann. § 30.02(a)(3) encompasses "conduct that falls outside the generic definition" of burglary. Gonzalez v. Wilkinson, 990 F.3d 654, 659 (8th Cir. 2021) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ) (internal quotation marks omitted) (discussing the application of the "realistic probability" analysis set forth by the United States Supreme Court in Duenas-Alvarez, 549 U.S. at 193, 127 S.Ct. 815, and Moncrieffe v. Holder, 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) ). The cases relied on by Hutchinson do not meet this standard.

The case of Lopez v. State, No. PD-0245-13, 2013 WL 6123577 (Tex. Crim. App. Nov. 20, 2013), is an unpublished decision in which the defendant plainly had the specific intent to commit assault after he unlawfully broke into his uncle's house and beat his uncle in his bed. 2013 WL 6123577, at *3. The second cited case, Rangel v. State, 179 S.W.3d 64 (Tex. Ct. App. 2005), is equally unavailing. In Rangel, the defendant was convicted under Texas Penal Code Ann. § 30.02(a)(3)...