United States v. Joshua Bolin

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 10, 2019
• Docket: 18-5842
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 19a0351n.06

No. 18-5842 FILED Jul 10, 2019 DEBORAH S. HUNT, Clerk UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN JOSHUA BOLIN, ) DISTRICT OF KENTUCKY ) Defendant-Appellant. ) )

BEFORE: ROGERS, BUSH, and LARSEN, Circuit Judges.

ROGERS, Circuit Judge. Joshua Bolin was convicted of being a felon in possession of

firearms under 18 U.S.C. § 922(g)(1). The district court determined he was an Armed Career

Criminal under 18 U.S.C. § 924 because he had numerous prior convictions for Kentucky second-

degree burglary. On appeal, Bolin challenges his ACCA enhancement on the ground that

Kentucky second-degree burglary is broader than the generic offense of burglary and therefore is

not categorically a “crime of violence” under the ACCA’s enumerated offenses clause.

Alternatively, he contends that Kentucky second-degree burglary is divisible, and therefore his

case should be remanded to the district court to determine which variety of Kentucky second-

degree burglary he committed. These challenges fail, however, because Kentucky second-degree

burglary—in all its forms—is categorically a crime of violence. No. 18-5842, United States v. Bolin

As this court held in United States v. Malone, 889 F.3d 310 (6th Cir. 2018), cert. denied,

139 S. Ct. 1323 (2019), Kentucky second-degree burglary is not broader than the generic offense.

889 F.3d at 313. Bolin contends that Malone was wrongly decided, but we are bound by that

published holding. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.

1985). Moreover, Bolin’s only argument as to why Malone was incorrect has now been addressed

by the Supreme Court, and not in Bolin’s favor. Bolin contends that Kentucky second-degree

burglary covers “remaining in” burglary, where a person lawfully enters a building but then

remains there unlawfully, and that such “remaining in” burglary is broader than the generic

burglary Congress was thinking of when it enacted the ACCA. In Quarles v. United States, 139

S. Ct. 1872 (2019), the Supreme Court unanimously held that remaining-in burglary was a generic

burglary. 139 S. Ct. at 1880. Thus, even if Kentucky second-degree burglary covers remaining-

in burglary it is not overbroad.

Quarles not only disposes of Bolin’s primary argument, but it also dooms his alternative

divisibility challenge. Bolin contends that Kentucky second degree burglary is divisible and so

we must remand for the district court to determine which variety of Kentucky second degree

burglary Bolin committed (ten times). Even if he is correct as to divisibility, see United States v.

Slaughter, 751 F. App’x 659, 663–64 (6th Cir. 2018), that does not require a remand because the

alternate variety of Kentucky burglary relied upon by Bolin is remaining-in burglary. After

Quarles, it is clear that both varieties of Kentucky second-degree burglary fall within the generic

offense of burglary.

The judgment of the district court is affirmed.

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