NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0538n.06
No. 17-2003
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 21, 2019 DEBORAH S. HUNT, Clerk JEFFREY MALONE, ) ) ON APPEAL FROM THE Petitioner-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF MICHIGAN ) UNITED STATES OF AMERICA, ) OPINION ) Respondent-Appellee. ) )
BEFORE: CLAY, STRANCH, and MURPHY, Circuit Judges.
JANE B. STRANCH, Circuit Judge. At issue in this case is whether conviction under
Michigan’s second-degree home invasion statute constitutes a violent felony for purposes of the
Armed Career Criminal Act’s (“ACCA”) sentencing enhancement. See 18 U.S.C. § 924(e). Upon
pleading guilty to being a felon in possession of a firearm, Jeffrey Malone faced a mandatory
minimum sentence of 180 months’ (15 years) imprisonment under the ACCA based on three prior
violent felony convictions—at least one of which was second-degree felony home invasion. He
was sentenced as an armed career criminal to 108 months, then later filed a 28 U.S.C. § 2255
petition challenging that designation. The district court denied relief. Because Michigan’s second-
degree home invasion statute substantially corresponds to or is narrower than the definition of
generic burglary under the ACCA, we AFFIRM the decision of the district court. No. 17-2003, Malone v. United States
I. BACKGROUND
On April 5, 2012, Jeffrey Malone pled guilty to one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). While his Guidelines range was 151-188 months’
imprisonment, Malone was found subject to a 15-year (180 month) mandatory minimum pursuant
to § 924(e) based on his three violent felony convictions, one or more of which were for second-
degree home invasion under Michigan law. Malone was sentenced to 108 months’ imprisonment,
and he did not appeal. In 2016, Malone filed a § 2255 motion to vacate his sentence contending
that his home invasion conviction no longer qualifies as an ACCA predicate felony, in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243
(2016), because Michigan’s statute is broader than a generic burglary.1 The district court
concluded that Malone’s prior home invasion conviction remained a violent felony for ACCA
purposes, even under the parameters set forth in Johnson and Mathis. See United States v. Malone,
No. CR 11-20668, 2017 WL 3531392, at *3–5 (E.D. Mich. Aug. 17, 2017). It further reasoned,
however, that reasonable jurists could find the court’s holding on the home invasion issue
debatable based on our then-recent en banc decision in United States v. Stitt, 860 F.3d 854 (6th
Cir. 2017), rev’d, 139 S. Ct. 399 (2018), and issued a certificate of appealability as to that claim.
Malone, 2017 WL 3531392, at *6.
1 Malone made the same argument for a prior arson conviction, which also counted as a predicate violent felony for ACCA purposes. But the district court rejected this argument. The certificate of appealability issued by the district court does not extend to Malone’s arson conviction. 2 No. 17-2003, Malone v. United States
Malone timely appealed. We agreed to hold his case in abeyance while awaiting the
resolution of two relevant cases pending before the Supreme Court. In Quarles v. United States,
the Court considered whether Michigan’s third-degree home invasion statute—which shares the
definition of “dwelling” at issue in Malone’s challenge—is broader than generic burglary for
ACCA purposes because it criminalizes “remaining-in” burglaries, where a defendant’s intent to
commit a crime forms after entering a building or structure but while unlawfully remaining inside.
139 S. Ct. 1872, 1875 (2019). United States v. Stitt, the Supreme Court’s review of our en banc
decision, concerned whether a burglary statute that covers “vehicles designed or adapted for
overnight use takes the statute outside the generic burglary definition,” and passed, in part, on a
Tennessee law that, like Michigan’s, sweeps appurtenant structures into its definition of applicable
buildings. 139 S. Ct. 399, 407 (2018). Both cases have now been decided.
II. ANALYSIS
A. Standard of Review
When reviewing a district court’s denial of a § 2255 motion, we review legal conclusions
de novo and factual findings for clear error. Braden v. United States, 817 F.3d 926, 929 (6th Cir.
2016). “Section 2255 provides federal prisoners with a means to secure a second look at the
legality of their conviction or sentence, beyond the direct appeal of right.” Ajan v. United
States, 731 F.3d 629, 631 (6th Cir. 2013). We consider de novo whether a prior criminal
conviction qualifies as a violent felony for purposes of an ACCA sentencing enhancement. United
States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).
3 No. 17-2003, Malone v. United States
B. Discussion
The ACCA requires a mandatory minimum sentence of 15 years for a person convicted of
a firearms offense under § 922(g), if that defendant has three prior convictions for a “serious drug
offense” or a “violent felony.” 18 U.S.C. § 924(e). Relevant here, a “violent felony” is “any crime
punishable by imprisonment for a term exceeding one year” that meets at least one of the following
three conditions: it “[1] has as an element the use, attempted use, or threatened use of physical
force against the person of another; or [2] is burglary, arson, or extortion, involves use of
explosives, or [3] otherwise involves conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B). We refer to the first as the “use of physical force” or the
“elements” clause; the second as the “enumerated felonies” clause; and the third as the “residual
clause.”2 Mitchell, 743 F.3d at 1058; Braden, 817 F.3d at 932. The district court found that
Michigan’s second-degree home invasion statute constitutes a violent felony under the ACCA’s
enumerated felony clause because it corresponds to the definition of generic burglary. Malone,
2017 WL 3531392, at *5.
To determine whether a criminal statute qualifies as a violent felony, courts employ a
“categorical approach.” Mitchell, 743 F.3d at 1058. Courts must evaluate the prior state
conviction “in terms of how the law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.” Stitt, 139 S. Ct. at 405 (quoting Begay
v. United States, 553 U.S. 137, 141 (2008)). “This approach ‘avoid[s] the practical difficulties and
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0538n.06
No. 17-2003
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Oct 21, 2019 DEBORAH S. HUNT, Clerk JEFFREY MALONE, ) ) ON APPEAL FROM THE Petitioner-Appellant, ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN v. ) DISTRICT OF MICHIGAN ) UNITED STATES OF AMERICA, ) OPINION ) Respondent-Appellee. ) )
BEFORE: CLAY, STRANCH, and MURPHY, Circuit Judges.
JANE B. STRANCH, Circuit Judge. At issue in this case is whether conviction under
Michigan’s second-degree home invasion statute constitutes a violent felony for purposes of the
Armed Career Criminal Act’s (“ACCA”) sentencing enhancement. See 18 U.S.C. § 924(e). Upon
pleading guilty to being a felon in possession of a firearm, Jeffrey Malone faced a mandatory
minimum sentence of 180 months’ (15 years) imprisonment under the ACCA based on three prior
violent felony convictions—at least one of which was second-degree felony home invasion. He
was sentenced as an armed career criminal to 108 months, then later filed a 28 U.S.C. § 2255
petition challenging that designation. The district court denied relief. Because Michigan’s second-
degree home invasion statute substantially corresponds to or is narrower than the definition of
generic burglary under the ACCA, we AFFIRM the decision of the district court. No. 17-2003, Malone v. United States
I. BACKGROUND
On April 5, 2012, Jeffrey Malone pled guilty to one count of being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). While his Guidelines range was 151-188 months’
imprisonment, Malone was found subject to a 15-year (180 month) mandatory minimum pursuant
to § 924(e) based on his three violent felony convictions, one or more of which were for second-
degree home invasion under Michigan law. Malone was sentenced to 108 months’ imprisonment,
and he did not appeal. In 2016, Malone filed a § 2255 motion to vacate his sentence contending
that his home invasion conviction no longer qualifies as an ACCA predicate felony, in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243
(2016), because Michigan’s statute is broader than a generic burglary.1 The district court
concluded that Malone’s prior home invasion conviction remained a violent felony for ACCA
purposes, even under the parameters set forth in Johnson and Mathis. See United States v. Malone,
No. CR 11-20668, 2017 WL 3531392, at *3–5 (E.D. Mich. Aug. 17, 2017). It further reasoned,
however, that reasonable jurists could find the court’s holding on the home invasion issue
debatable based on our then-recent en banc decision in United States v. Stitt, 860 F.3d 854 (6th
Cir. 2017), rev’d, 139 S. Ct. 399 (2018), and issued a certificate of appealability as to that claim.
Malone, 2017 WL 3531392, at *6.
1 Malone made the same argument for a prior arson conviction, which also counted as a predicate violent felony for ACCA purposes. But the district court rejected this argument. The certificate of appealability issued by the district court does not extend to Malone’s arson conviction. 2 No. 17-2003, Malone v. United States
Malone timely appealed. We agreed to hold his case in abeyance while awaiting the
resolution of two relevant cases pending before the Supreme Court. In Quarles v. United States,
the Court considered whether Michigan’s third-degree home invasion statute—which shares the
definition of “dwelling” at issue in Malone’s challenge—is broader than generic burglary for
ACCA purposes because it criminalizes “remaining-in” burglaries, where a defendant’s intent to
commit a crime forms after entering a building or structure but while unlawfully remaining inside.
139 S. Ct. 1872, 1875 (2019). United States v. Stitt, the Supreme Court’s review of our en banc
decision, concerned whether a burglary statute that covers “vehicles designed or adapted for
overnight use takes the statute outside the generic burglary definition,” and passed, in part, on a
Tennessee law that, like Michigan’s, sweeps appurtenant structures into its definition of applicable
buildings. 139 S. Ct. 399, 407 (2018). Both cases have now been decided.
II. ANALYSIS
A. Standard of Review
When reviewing a district court’s denial of a § 2255 motion, we review legal conclusions
de novo and factual findings for clear error. Braden v. United States, 817 F.3d 926, 929 (6th Cir.
2016). “Section 2255 provides federal prisoners with a means to secure a second look at the
legality of their conviction or sentence, beyond the direct appeal of right.” Ajan v. United
States, 731 F.3d 629, 631 (6th Cir. 2013). We consider de novo whether a prior criminal
conviction qualifies as a violent felony for purposes of an ACCA sentencing enhancement. United
States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).
3 No. 17-2003, Malone v. United States
B. Discussion
The ACCA requires a mandatory minimum sentence of 15 years for a person convicted of
a firearms offense under § 922(g), if that defendant has three prior convictions for a “serious drug
offense” or a “violent felony.” 18 U.S.C. § 924(e). Relevant here, a “violent felony” is “any crime
punishable by imprisonment for a term exceeding one year” that meets at least one of the following
three conditions: it “[1] has as an element the use, attempted use, or threatened use of physical
force against the person of another; or [2] is burglary, arson, or extortion, involves use of
explosives, or [3] otherwise involves conduct that presents a serious potential risk of physical
injury to another.” Id. § 924(e)(2)(B). We refer to the first as the “use of physical force” or the
“elements” clause; the second as the “enumerated felonies” clause; and the third as the “residual
clause.”2 Mitchell, 743 F.3d at 1058; Braden, 817 F.3d at 932. The district court found that
Michigan’s second-degree home invasion statute constitutes a violent felony under the ACCA’s
enumerated felony clause because it corresponds to the definition of generic burglary. Malone,
2017 WL 3531392, at *5.
To determine whether a criminal statute qualifies as a violent felony, courts employ a
“categorical approach.” Mitchell, 743 F.3d at 1058. Courts must evaluate the prior state
conviction “in terms of how the law defines the offense and not in terms of how an individual
offender might have committed it on a particular occasion.” Stitt, 139 S. Ct. at 405 (quoting Begay
v. United States, 553 U.S. 137, 141 (2008)). “This approach ‘avoid[s] the practical difficulties and
potential unfairness of permitting a sentencing court to relitigate facts and delve into the details of
2 The ACCA’s residual clause was held unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). 4 No. 17-2003, Malone v. United States
a prior conviction.’” Mitchell, 743 F.3d at 1058 (alteration in original) (quoting United States v.
Bartee, 529 F.3d 357, 359 (6th Cir. 2008)). “A defendant’s prior conviction under a state statute
qualifies as a predicate burglary under § 924(e) if the state statute—regardless of its ‘exact
definition or label’—‘substantially corresponds’ to or is narrower than the generic definition of
burglary.” Quarles, 139 S. Ct. at 1877 (quoting Taylor v. United States, 495 U.S. 575, 599, 602
(1990)). But “[a] prior state conviction . . . does not qualify as a generic burglary under the Act
where ‘the elements of [the relevant state statute] are broader than those of generic burglary.’”
Stitt, 139 S. Ct. at 405 (third alteration in original) (quoting Mathis, 136 S. Ct. at 2257). The
Supreme Court set forth the contours of generic burglary in Taylor: “an unlawful or unprivileged
entry into, or remaining in, a building or other structure, with intent to commit a crime.” 495 U.S.
at 598 (footnote omitted).
The Michigan second-degree home invasion statute that was in effect at the time Malone
was convicted, stated:
[a] person who breaks and enters a dwelling with intent to commit a felony or a larceny in the dwelling or a person who enters a dwelling without permission with intent to commit a felony or a larceny in the dwelling is guilty of home invasion in the second degree.
Mich. Comp. Laws § 750.110a(3) (1994) (amended 1999). A “dwelling” for purposes of the
statute “means a structure or shelter that is used permanently or temporarily as a place of abode,
including an appurtenant structure attached to that structure or shelter.” Id. § 750.110a(1)(a)
(emphasis added).3 Malone now argues that because its definition of a dwelling includes
3 During sentencing, the court referenced Malone’s conviction for second-degree home invasion in 1997. For ACCA purposes, the version of the statute in effect at the time of his conviction was not materially different than subsequent versions. 5 No. 17-2003, Malone v. United States
“appurtenant structure[s],” Michigan’s statute is broader than generic burglary and cannot serve
as a predicate felony.
The dispute here distills to whether the inclusion of appurtenant structures in the Michigan
home invasion statute removes it from the province of generic burglary. The district court rejected
Malone’s argument that, by encompassing appurtenant structures, the Michigan statute covers
more than the “building or other structure” defined in Taylor. Malone, 2017 WL 3531392, at *4;
495 U.S. at 598. It reasoned that a violent felony under the ACCA is analytically parallel to a
“crime of violence” under the federal Sentencing Guidelines; that the Sixth Circuit has, time and
again, found second-degree home invasion in Michigan to qualify as a crime of violence; and, that
any exception given to non-dwelling appurtenant structures in the Guidelines caselaw is inapposite
here, where the only appurtenant structures swept up are those “attached to” an abode. Malone,
2017 WL 3531392, at *4. The district court determined that, because the Michigan statute covers
only “buildings and structures,” it falls squarely within the terrain of generic burglary. Id., at *5.
We review the question de novo.
It is critical that Taylor’s generic burglary definition is not cabined to dwellings. As the
Supreme Court reiterated in Stitt, generic burglary includes common law burglary—“breaking and
entering a dwelling at night with intent to commit a felony”—but, it also “must include more” than
the common law definition to be relevant to “modern law enforcement concerns.” Stitt, 139 S. Ct.
at 405. “[B]y the time the [ACCA] was passed in 1986, most States had expanded the meaning of
burglary to include ‘structures other than dwellings.’” Id. (quoting Taylor, 495 U.S. at 593). While
6 No. 17-2003, Malone v. United States
Quarles and Stitt concerned questions at the margins of the generic burglary definition, they did
nothing to curtail the definition’s inclusion of non-dwelling buildings and structures.
Malone maintains, however, that appurtenant structures should nevertheless fall outside
the definition of generic burglary. In United States v. Lara, we analyzed whether Tennessee’s
aggravated burglary statute, which includes the same term, qualified as a “burglary of a dwelling”
for purposes of the Sentencing Guidelines. 590 F. App’x 574 (6th Cir. 2014). We concluded “that
‘appurtenant to’ can mean that an object is physically attached to another object, but it can also
imply a relationship between two objects. It follows that an unattached shed, for example, is
appurtenant to a house because the shed belongs to the house.” Id. at 579. But the Stitt Court held,
when considering the same Tennessee statute, that appurtenant structures fall within the generic
burglary definition. 139 S. Ct. at 406–07 (“We . . . disagree with Stitt’s argument that the
‘appurtenant to’ provision [pertaining to appurtenant structures] sweeps more broadly than generic
burglary, as defined in Taylor.”). To the extent that the Michigan and Tennessee appurtenant
structure provisions differ, Michigan’s is narrower. It includes only appurtenant structures that are
attached to a place of abode. Mich. Comp. Laws § 750.110a(1)(a). Michigan’s second-degree
home invasion statute therefore falls within the dimensions of generic burglary.
As a final note, we return to a policy touchstone invoked throughout the Court’s caselaw
on generic burglary and the ACCA. “Congress, as we said in Taylor, viewed burglary as an
inherently dangerous crime because burglary ‘creates the possibility of a violent confrontation
between the offender and an occupant, caretaker, or some other person who comes to investigate.’”
7 No. 17-2003, Malone v. United States
Stitt, 139 S. Ct. at 406 (quoting Taylor, 495 U.S. at 588); accord Quarles, 139 S. Ct. at 1879. This
concern accords with our conclusion.
III. CONCLUSION
For the foregoing reasons we AFFIRM the district court’s § 2255 order.