United States v. Frank Dodge

963 F.3d 379

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 30, 2020
• Docket: 18-4507
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4507

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANK JOSEPH DODGE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:15-cr-00293-FL-1)

Submitted: March 24, 2020 Decided: June 30, 2020

Before NIEMEYER, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge Quattlebaum joined.

G. Alan DuBois, Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. NIEMEYER, Circuit Judge:

After Frank Dodge pleaded guilty to possession of a firearm by a felon, in violation

of 18 U.S.C. § 922(g), the district court sentenced him to 88 months’ imprisonment. In

imposing this sentence, the court applied an enhancement under the Armed Career

Criminal Act (“ACCA”), concluding that Dodge had at least three previous convictions for

a violent felony, including numerous convictions for breaking and entering, in violation of

North Carolina General Statutes § 14-54. Dodge contends that the district court erred in

applying ACCA, arguing that a violation of § 14-54 does not constitute a violent felony for

ACCA purposes because it sweeps more broadly than generic burglary, a qualifying felony

offense enumerated in the Act. He acknowledges that generic burglary was defined in

Taylor v. United States, 495 U.S. 575, 598 (1990), to be the “unlawful or unprivileged entry

into, or remaining in, a building or other structure, with intent to commit a crime” and that

the North Carolina breaking and entering statute uses virtually the same language,

providing that “[a]ny person who breaks or enters any building with intent to commit any

felony or larceny therein shall be punished,” N.C. Gen. Stat. § 14-54(a). Nonetheless, he

focuses on the fact that the North Carolina statute defines the word “building” to include

any “structure designed to house or secure within it any activity or property.” Id.

§ 14-54(c) (emphasis added). Because “building” is defined to include a structure storing

property, § 14-54 is, according to Dodge, broader than generic burglary and therefore its

violation does not result in an ACCA predicate conviction.

While we recognize, as noted in more detail below, that Dodge makes an argument

based on language from two recent Supreme Court decisions, we nonetheless are bound to

2 follow our prior decision in United States v. Mungro, 754 F.3d 267, 272 (4th Cir. 2014),

where we held that the North Carolina breaking and entering statute “sweeps no more

broadly than the generic elements of burglary” and therefore its violation qualifies as an

ACCA predicate conviction. Moreover, the Supreme Court language cited by Dodge

focused on whether a State’s inclusion of vehicles in the text of its definition of burglary

made the statute broader than the generic definition of burglary, an issue not before us

today. Consistent with that, we have continued to rely on Mungro as binding precedent in

at least 17 published and unpublished opinions decided both before and after the Supreme

Court issued its opinions. In some unpublished opinions, we have even rejected the very

argument that Dodge makes here. Because our holding in Mungro has not been

superseded, we affirm.

I

The presentence report prepared for Dodge’s sentencing listed as part of his criminal

history seven prior felony convictions for breaking and entering, in violation of N.C. Gen.

Stat. § 14-54(a). Based on these convictions, the report indicated that, pursuant to ACCA,

Dodge was subject to a mandatory minimum sentence of 15 years’ imprisonment.

At his sentencing hearing, Dodge argued that his prior North Carolina breaking and

entering convictions did not qualify as violent felony convictions for purposes of applying

ACCA’s sentencing enhancement because § 14-54 criminalizes the breaking and entering

into a broader range of structures than does burglary, including, for example, structures

that house “property.” He maintained that while our prior decision in Mungro held that an

3 offense under § 14-54(a) qualified as a violent felony for ACCA purposes, it did not

explicitly analyze the scope of the definition of “building” used in the North Carolina

statute or consider whether it is broader than that used in generic burglary. Dodge thus

argued that Mungro was not controlling.

While the district court acknowledged Dodge’s objection, it stated that it was

obligated to follow our precedent in Mungro. Accordingly, it accepted the presentence

report’s conclusion that Dodge was subject to ACCA’s 15-year mandatory minimum

sentence as an armed career criminal. Nonetheless, the government filed a motion for a

downward departure, and the district court sentenced Dodge to 88 months’ imprisonment.

From the judgment entered on July 9, 2018, Dodge filed this appeal, challenging

only the district court’s application of ACCA in sentencing him.

II

In relevant part, ACCA provides that a person convicted of violating 18 U.S.C.

§ 922(g), who has three prior convictions for a violent felony is subject to a mandatory

minimum sentence of 15 years’ imprisonment. See 18 U.S.C. § 924(e)(1). The term

“violent felony” as used in § 924(e)(1) is defined to include, among other things, “any

crime punishable by imprisonment for a term exceeding one year” that “is burglary, arson,

or extortion, [or] involves use of explosives.” Id. § 924(e)(2)(B)(ii) (emphasis added).

In this case, the district court concluded that North Carolina breaking and entering,

in violation of § 14-54, qualifies as “burglary” and that Dodge’s multiple convictions under

4 that statute thus triggered application of ACCA’s sentencing enhancement. It is this ruling

that Dodge challenges.

To determine whether North Carolina breaking and entering under § 14-54

constitutes “burglary” as used in 18 U.S.C. § 924(e)(2)(B)(ii), we apply the categorical

approach, comparing the North Carolina statute’s elements with those of generic federal

burglary to ascertain whether the state statute has the same elements or elements defined

more narrowly than the generic federal crime. See Descamps v. United States, 570 U.S.

254, 257 (2013). If the elements are the same or more narrow, a violation of the state

statute qualifies as a predicate conviction under ACCA.

The Supreme Court has defined the generic crime of burglary in ACCA as “an

unlawful or unprivileged entry into, or remaining in, a building or other structure, with

intent to commit a crime,” Taylor, 495 U.S. at 598, and therefore, we understand the

elements of generic burglary as (1) an unlawful or unprivileged entry or presence in (2) a

requisite location, meaning “a building or other structure,” (3) with the intent to commit a

crime.

Similar to the generic federal crime, the North Carolina breaking and entering

offense is committed when a person “[1] breaks or enters [2] any building [3] with intent

to commit any felony or larceny therein.” N.C. Gen. Stat. § 14-54(a). The North Carolina

statute, however, includes a definition of “building” to mean “any dwelling, dwelling

house, uninhabited house, building under construction, building within the curtilage of a

dwelling house, and any other structure designed to house or secure within it any activity

or property.” Id. § 14-54(c).

5 In Mungro, we compared the North Carolina breaking and entering statute with

generic federal burglary and held that “N.C. Gen. Stat. § 14-54(a), as interpreted by the

North Carolina Supreme Court, sweeps no more broadly than the generic elements of

burglary.” 754 F.3d at 272. In reaching that conclusion, however, we did not specifically

consider the relative scopes of the “building” elements.

Since deciding Mungro, we have cited it in two published opinions without

qualification. See United States v. Mack, 855 F.3d 581, 586 n.2 (4th Cir. 2017) (citing

Mungro for its substantive holding that an offense under N.C. Gen. Stat. § 14-54 is an

ACCA predicate); United States v. McCollum, 885 F.3d 300, 305 n.5 (4th Cir. 2018)

(quoting Mungro’s description of the categorical approach). We have also relied on it in

at least 15 unpublished decisions for its holding that § 14-54 constitutes generic burglary

for purposes of applying ACCA’s sentencing enhancement. See United States v. Judd, No.

19-4540, 2020 WL 1490740 (4th Cir. Mar. 27, 2020); United States v. Davidson, 802 F.

App’x 800 (4th Cir. 2020); United States v. Denton, 773 F. App’x 134 (4th Cir. 2019);

United States v. Joy, 771 F. App’x 307 (4th Cir. 2019); United States v. Hill, 771 F. App’x

195 (4th Cir. 2019); United States v. Street, 756 F. App’x 310 (4th Cir. 2019); United States

v. Beatty, 702 F. App’x 148 (4th Cir. 2017); United States v. Brown, 670 F. App’x 191 (4th

Cir. 2016); United States v. Jones, 669 F. App’x 110 (4th Cir. 2016); United States v.

Harris, 653 F. App’x 215 (4th Cir. 2016); United States v. Bolden, 645 F. App’x 282 (4th

Cir. 2016); United States v. Thompson, 615 F. App’x 160 (4th Cir. 2015); United States v.

Lockamy, 613 F. App’x 227 (4th Cir. 2015); United States v. Ingram, 597 F. App’x 151

(4th Cir. 2015); In re Whitley, 577 F. App’x 212 (4th Cir. 2014). Notably, in at least 3 of

6 these unpublished decisions, we explicitly rejected the same “locational element” argument

that Dodge makes here. See Denton, 773 F. App’x at 135; Street, 756 F. App’x at 311;

Beatty, 702 F. App’x at 150–51; see also United States v. Maham, 767 F. App’x 532, 533

(4th Cir. 2019).

Dodge makes two arguments to avoid the Mungro line of cases. First, he correctly

notes that the Mungro decision itself did not explicitly consider whether § 14-54(a)’s

“building” element matched that of generic federal burglary. And second, he notes that

since Mungro was decided, the Supreme Court has handed down two decisions clarifying

the meaning of the term “building” — Mathis v. United States, 136 S. Ct. 2243 (2016), and

United States v. Stitt, 139 S. Ct. 399 (2018) — which, he maintains, indicate that North

Carolina’s definition of “building” is broader than that included in a generic burglary

offense.

As to Dodge’s first argument, although Mungro did not explicitly consider

§ 14-54(a)’s “building” element, we nonetheless held unequivocally that “N.C. Gen .Stat.

§ 14-54(a), as interpreted by the North Carolina Supreme Court, sweeps no more broadly

than the generic elements of burglary” and therefore a conviction under that statute

qualifies as an ACCA predicate conviction. 754 F.3d. at 272. And were we to accept

Dodge’s argument, we could no longer follow that holding. Yet, as a three-judge panel,

we are precluded from overruling Mungro. See United States v. Collins, 415 F.3d 304, 311

(4th Cir. 2005) (“A decision of a panel of this court becomes the law of the circuit and is

binding on other panels unless it is overruled by a subsequent en banc opinion of this court

or a superseding contrary decision of the Supreme Court” (citation omitted)). Of course,

7 if the Supreme Court has issued a “superseding contrary decision,” we are bound to apply

it, which brings us to Dodge’s second argument.

Dodge contends that the Supreme Court’s decisions in Mathis and Stitt clarified the

meaning of “building” for ACCA purposes and that clarification places Mungro in doubt.

In Mathis — decided two years after Mungro — the Supreme Court addressed the

“building” element of an Iowa burglary statute and reasoned that because it applied to

burglary of “any building, structure, or land, water, or air vehicle,” 136 S. Ct. at 2250

(quoting Iowa Code § 702.12 (2013)) (cleaned up), it covered a greater swath of conduct

than generic federal burglary and thus could not constitute an ACCA predicate offense, id.

at 2251. This was so because while buildings and other structures satisfy generic burglary’s

locational element, vehicles do not. Id. at 2250.

And in Stitt, the Court held that the burglary of a structure or vehicle qualified as

generic burglary under ACCA if the state statute required that the vehicle be adapted or

customarily used for overnight accommodation. 139 S. Ct. at 406–07. In so holding, the

Court noted that generic burglary is a crime concerned with violent confrontations that may

arise when people are present and reasoned that “[a]n offender who breaks into a mobile

home, an RV, a camping tent, a vehicle, or another structure that is adapted for or

customarily used for lodging runs a similar or greater risk of violent confrontation.” Id. at

406. There is also explanatory language in Stitt suggesting, but not holding, that the

locational element of generic burglary might not encompass structures intended for the

storage of property rather than for occupancy:

8 In Taylor, for example, we referred to a Missouri breaking and entering statute that among other things criminalized breaking and entering “any boat or vessel, or railroad car.” Ibid. (citing Mo. Rev. Stat. § 560.070 (1969); emphasis added). We did say that that particular provision was beyond the scope of the federal Act. But the statute used the word “any”; it referred to ordinary boats and vessels often at sea (and railroad cars often filled with cargo, not people), nowhere restricting its coverage, as here, to vehicles or structures customarily used or adapted for overnight accommodation. The statutes before us, by using these latter words, more clearly focus upon circumstances where burglary is likely to present a serious risk of violence.

In Mathis, we considered an Iowa statute that covered “any building, structure, . . . land, water or air vehicle, or similar place adapted for overnight accommodation of persons or used for the storage or safekeeping of anything of value.” Iowa Code § 702.12 (2013). Courts have construed that statute to cover ordinary vehicles because they can be used for storage or safekeeping. See State v. Buss, 325 N.W.2d 384 (Iowa 1982); Weaver v. Iowa, 949 F.2d 1049 (9th Cir. 1991). That is presumably why, as we wrote in our opinion, “all parties agree[d]” that Iowa’s burglary statute “covers more conduct than generic burglary does.” Mathis, 136 S. Ct. at 2250.

Id. at 407 (cleaned up) (second and third emphases added).

Thus, Dodge argues that because no published decision of this court has explicitly

resolved the question of whether the “building” element of North Carolina’s breaking and

entering statute is overbroad, the language from Mathis and Stitt indicates that it very well

may be.

Nonetheless, as Dodge seems to acknowledge, the fact remains that neither Mathis

nor Stitt is a superseding contrary decision of the Supreme Court overruling Mungro’s

explicit holding that North Carolina breaking and entering qualifies as a violent felony for

ACCA purposes. The relevant discussion in these two cases focused primarily on whether

there was a distinction between “vehicles,” even if used for temporary accommodation,

and “buildings.” See Mathis, 136 S. Ct. at 2250; Stitt, 139 S. Ct. at 406–07. And while

9 language in Stitt implies that generic federal burglary is concerned with violent

confrontations that might arise when people are present, whether in buildings, structures,

or vehicles, its holding was limited to the vehicle context. Moreover, both Mathis and Stitt

relied on Taylor’s definition of generic burglary, as did we in Mungro, and neither

purported to articulate a new test for assessing the locational element of that definition.

Thus, we are faced with prior Fourth Circuit precedent that could be read as being

in tension with intervening Supreme Court reasoning but no directly applicable Supreme

Court holding. In a similar situation, we have determined that we could not overturn our

prior precedent where our cases post-dating the Supreme Court developments continued to

rely on prior panel decisions as binding. See United States v. Prince-Oyibo, 320 F.3d 494,

501 (4th Cir. 2003) (reasoning that while Daubert v. Merrell Dow Pharms., Inc., 509 U.S.

579 (1993), may have “alter[ed] the legal landscape” with respect to the admissibility of

certain evidence, this court’s subsequent reliance on pre-Daubert polygraph evidence

decisions established that those decisions continued to carry precedential force and thus

could not be overruled by a three-judge panel). Just as in Prince-Oyibo, we have repeatedly

treated Mungro as binding precedent, even after both Mathis and Stitt.

At bottom, we conclude that Mathis and Stitt do not overrule our prior holding in

Mungro that a conviction under N.C. Gen. Stat. § 14-54(a) qualifies as an ACCA predicate

conviction under 18 U.S.C. § 924(e)(2)(B)(ii). And because that holding is explicit and we

have repeatedly relied on it in subsequent decisions, it governs our review in this case.

The judgment of the district court is accordingly

AFFIRMED.