United States v. Jose Henriquez

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4238

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE HERBERT HENRIQUEZ,

Defendant − Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00504-RWT-1)

Argued: January 28, 2014 Decided: June 27, 2014

Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.

Vacated and remanded by published opinion. Judge Wynn wrote the
majority opinion, in which Chief Judge Traxler joined. Judge
Motz wrote a dissenting opinion.

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Kelly O. Hayes, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WYNN, Circuit Judge:

Under the United States Sentencing Guidelines, judges may

increase the sentences of defendants previously convicted of

violent crimes. Generic burglary has been deemed a crime of

violence sufficient to support such an enhanced sentence. At

issue in this case is whether first degree burglary in Maryland

constitutes a generic burglary, i.e., a crime of violence that

can support a sentence enhancement under United States

Sentencing Guidelines Section 2L1.2(b)(1)(A)(ii). Our careful

review leads us to conclude that it does not. We hold that

Maryland’s courts have construed Maryland’s first degree

burglary statute more broadly than the Supreme Court’s

definition of generic burglary. Specifically, there is a

realistic probability that Maryland’s statute covers burglaries

of motor vehicles or boats—places that the United States Supreme

Court has expressly excluded from generic burglary.

Accordingly, we vacate Defendant’s sentence, which the district

court enhanced based on Defendant’s prior conviction of first

degree burglary in Maryland, and remand for resentencing.

I.

Jose Herbert Henriquez (“Defendant”) pled guilty without a

plea agreement to one count of unlawfully reentering the United

States in violation of 8 U.S.C. § 1326(a) and (b)(2). His

2
adjusted offense level was calculated to be 24, which consisted

of a base offense level of 8, plus a 16-level enhancement under

United States Sentencing Guidelines (“U.S.S.G.”) Section

2L1.2(b)(1)(A)(ii). The offense that triggered the 16-level

enhancement was Defendant’s 2000 Maryland conviction of first

degree burglary, which the presentence report (“PSR”) called a

crime of violence. Over Defendant’s objection, the district

court applied the enhancement and sentenced Defendant to 41

months of imprisonment. 1

In explaining its decision to apply the enhancement, the

district court noted that U.S.S.G. Section 2L1.2(b)(1) “says

burglary of a dwelling[,]” and that the Maryland statute “is

four square within the language of the applicable Guideline

Section 2L1.2 as ‘burglary of a dwelling.’” J.A. 80–81. The

district court also explained that “Maryland retains the more

traditional” definition of burglary and “has not chosen to

expand it to any old structure.” J.A. 80.

Defendant filed a timely appeal and raises the same

argument that he made below: that a conviction of first degree

burglary in Maryland is not a crime of violence because

1
The PSR recommended, and the district court granted, a 3-
level reduction for Defendant’s acceptance of responsibility.
The resulting 41-month sentence was within the Guidelines range
of 41 to 51 months for Defendant’s total offense level of 21 and
criminal history category of II.

3
Maryland’s definition of burglary exceeds the scope of generic

burglary as defined by the United States Supreme Court.

Specifically, Defendant argues that first degree burglary in

Maryland lacks a necessary element of generic burglary—that the

crime take place in a building or structure. Defendant contends

that because Maryland has not limited the term “dwelling” to

buildings or structures, one could be convicted in Maryland of

burglarizing boats or motor vehicles, which are enclosures that

the Supreme Court has expressly excluded from the definition of

generic burglary. Upon careful review, we must agree with

Defendant.

II.

A defendant convicted of illegally reentering the United

States is subject to a sentencing enhancement if, before his

removal, he had been convicted of a “crime of violence.”

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines definition of

“crime of violence” specifically includes “burglary of a

dwelling.” U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii). Whether

a prior conviction qualifies as a crime of violence is a legal

question that we review de novo. United States v. Bonilla, 687

F.3d 188, 190 (4th Cir. 2012), cert. denied, 134 S. Ct. 52

(2013).

4
 A.

In Taylor v. United States, 495 U.S. 575 (1990), the

Supreme Court considered whether “burglary” constituted a

“violent felony” under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). 2 The Supreme Court sought to tease out “some

uniform definition independent of the labels employed by the

various States’ criminal codes.” Taylor, 495 U.S. at 592. The

Court held that “[a]lthough the exact formulations vary, the

generic, contemporary meaning of burglary contains at least the

following elements: an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to

commit a crime.” Id. at 598. The Supreme Court noted that

“there is no problem” for convictions in states whose

definitions of burglary are the same as—or narrower than—this

generic definition. Id. at 599. But the same could not be said

of states that “define burglary more broadly, e.g., . . . by

including places, such as automobiles[,]” i.e., places “other

than buildings.” Id.

Fifteen years later, the Supreme Court stated even more

clearly that the ACCA “makes burglary a violent felony only if

2
Although Taylor pertained to the ACCA, we apply the same
analysis to the question of whether a particular crime
constitutes a “crime of violence” under the Guidelines. See
United States v. Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012).

5
committed in a building or enclosed space (‘generic burglary’),

not in a boat or motor vehicle.” Shepard v. United States, 544

U.S. 13, 15-16 (2005). Although Taylor and Shepard both

involved the ACCA’s enumerated crime of “burglary,” rather than

the Guidelines’ enumerated crime of “burglary of a dwelling” at

issue here, this Court has nonetheless applied Taylor’s

definition of generic burglary to the Guidelines’ inquiry, “with

the additional requirement that a burglary qualifying as a

‘crime of violence’ must involve a dwelling.” Bonilla, 687 F.3d

at 190–91 n.3 (citing, inter alia, United States v. Wenner, 351

F.3d 969, 973 (9th Cir. 2003) (“[T]he most logical and sensible

reading of the Guidelines . . . is to construe ‘burglary of a

dwelling’ as the Taylor definition of burglary, with the

narrowing qualification that the burglary occur in a

dwelling[.]”)). Thus, before applying the enhancement in

U.S.S.G. Section 2L1.2(b)(1)(A)(ii) to a defendant who

previously had been convicted of burglary, a sentencing court

must satisfy itself that the defendant’s prior burglary

conviction entailed the “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. The sentencing court

also must ensure that the burglary occurred in a dwelling,

Bonilla, 687 F.3d at 190 n.3, and that the dwelling was not a

6
boat, motor vehicle, or other enclosure that is excluded from

the definition of generic burglary, Shepard, 544 U.S. at 16.

Further, we employ the categorical approach here because

“the crime of which the defendant was convicted has a single,

indivisible set of elements.” Descamps v. United States, 133 S.

Ct. 2276, 2282 (2013). Our analysis is thus “restricted to ‘the

fact of conviction and the statutory definition of the prior

offense.’” United States v. Aparicio-Soria, 740 F.3d 152, 154

(4th Cir. 2014) (en banc) (quoting Taylor, 495 U.S. at 603).

Finally, federal courts have no “authority to place a

construction on a state statute different from the one rendered

by the highest court of the State.” Johnson v. Fankell, 520

U.S. 911, 916 (1997). Rather, “[t]o the extent that the

statutory definition of the prior offense has been interpreted

by the state’s highest court, that interpretation constrains our

analysis of the elements of state law.” Aparicio-Soria, 740

F.3d at 154. With this legal framework in mind, we now turn to

the text of Maryland’s first degree burglary statute and the way

in which the Maryland Court of Appeals has interpreted it.

B.

Section 6-202 of Maryland’s criminal code provides that

“[a] person may not break and enter the dwelling of another with

the intent to commit theft or a crime of violence.” Md. Code

Ann., Crim. Law § 6-202(a). The statute does not define the

7
term “dwelling,” and it was not until 2008 that the Maryland

Court of Appeals, Maryland’s highest court, considered

“precisely what is meant by a ‘dwelling[.]’” McKenzie v. State,

962 A.2d 998, 1001 (Md. 2008). After determining that “the

General Assembly intended the meaning of ‘dwelling,’ insofar as

the burglary statutes are concerned, to be subject to ongoing

clarification in the case law[,]” id. at 1002, Maryland’s high

court reviewed opinions by the intermediate court, the Maryland

Court of Special Appeals, id. at 1003–07.

The Court of Appeals explained that the intermediate court

had developed the following test for determining whether a place

was a dwelling under Maryland’s burglary statutes:

“The test as to whether or not a building is a
dwelling house is whether or not it is used regularly
as a place to sleep. No building becomes a dwelling
by reason of the fact that someone may sleep there on
rare occasions or take an occasional nap there[.]”

Id. at 1003 (quoting Poff v. State, 241 A.2d 898, 900 (Md. Ct.

Spec. App. 1968)) (internal quotation marks omitted). The Court

of Appeals described how the intermediate court applied that

test in 1983 to hold that a recreational vehicle was a dwelling

under Maryland’s daytime housebreaking statute, and it recounted

the intermediate court’s explanation:

[T]he “crucial factor” is “whether [the structure] is
a place intended to be used, and in fact is used, as
an abode and place for humans to sleep. . . . The
paramount interest that [the daytime housebreaking
statute] seeks to protect is the right of human

8
 habitation to be free from the terror of an invader.
Accordingly, it matters not what type of facility the
individual chooses to use for his habitation, so long
as he intends it to be his abode and so uses it.”

Id. at 1005 (quoting Kanaras v. State, 460 A.2d 61, 71 (Md. Ct.

Spec. App. 1983)).

To be sure, McKenzie involved the question of whether a

temporarily unoccupied apartment constituted a “dwelling.” It

did not squarely present the question at issue here: whether an

enclosure that is excluded from the federal definition of

generic burglary—such as a boat or motor vehicle—can be a

“dwelling” under Maryland’s burglary statutes. But nothing in

McKenzie indicates that the Court of Appeals found fault with

the intermediate court’s reasoning quoted above—reasoning that

expressly captured recreational vehicles and easily could cover

those boats and motor vehicles that people intend to use, and do

use, as their dwellings.

Rather, the Maryland Court of Appeals has embraced a notion

of the term “dwelling” that renders its first degree burglary

statute broader than the Supreme Court’s “generic burglary”

definition. This is demonstrated by the Maryland high court’s

explicit adoption of “the reasoning and holding of the New

Jersey Supreme Court in [State v. Scott, 776 A.2d 810 (N.J.

2001)].” Id. at 1007. The Maryland Court of Appeals explained

that Scott defined “‘dwelling’ as ‘a place where a person

9
resides and sleeps[,]’” id. at 1006 (quoting Scott, 776 A.2d at

814), and that Scott “is generally in line with the Court of

Special Appeals’ opinions we have discussed.” Id. at 1007.

We, therefore, must conclude that Maryland’s definition of

a “dwelling” as used in its first degree burglary statute is a

place where a person resides and sleeps. We decline to impose

on this definition a limiting construction that would exclude

boats or motor vehicles—enclosures not covered by the federal

definition of generic burglary. And although we have found no

Maryland Court of Appeals case that has defined a dwelling as a

boat or motor vehicle—enclosures clearly outside the scope of

the generic definition—such a case is unnecessary for our

conclusion. We instead assess “whether there is a realistic

probability” that Maryland “would apply its statute to conduct

that falls outside the generic definition of” burglary. United

States v. Perez-Perez, 737 F.3d 950, 955 (4th Cir. 2013)

(quotation marks omitted).

We conclude that there is a realistic probability that

Maryland would apply its first degree burglary statute to

conduct that falls outside the Supreme Court’s definition of

“generic burglary.” This conclusion is well-supported because

the Maryland Court of Appeals has not limited the term

“dwelling” to a building or structure. Further, the Maryland

Court of Special Appeals has held a recreational vehicle to be a

10
dwelling—a holding that the Court of Appeals discussed and in no

way rejected when it had the chance to do so in McKenzie.

We turn now to an examination of the parties’ arguments.

III.

Defendant makes the simple argument that Maryland’s courts

have construed the term “dwelling” broadly enough to convict a

person of burglarizing an enclosure excluded from the federal

definition of generic burglary. Because the categorical

approach precludes federal courts from looking to the facts

underlying a prior conviction, a sentencing court would have no

way to ensure that a first degree burglary conviction in

Maryland did not involve an excluded enclosure—such as a boat or

motor vehicle. Therefore, Defendant argues, the district court

erred in applying the 16-level enhancement under Guidelines

Section 2L1.2(b)(1)(A)(ii) for his prior conviction of first

degree burglary in Maryland. For the reasons already discussed,

we agree.

The Government counters that we should affirm Defendant’s

sentence because “Maryland’s first-degree burglary statute fits

well within the definition of ‘burglary of a dwelling’ for

purposes of” Guidelines Section 2L1.2(b)(1)(A)(ii). Appellee’s

Br. at 11. The Government’s argument is similar to the

reasoning of the district court, which concluded that the

11
Maryland statute Defendant was convicted of violating “is four

square within the language of the applicable Guideline Section

2L1.2 as ‘burglary of a dwelling.’” J.A. 80.

The Government further contends that Taylor stands for the

proposition that the definition of burglary under the ACCA is

broader than the common law definition of burglary. And, as

noted by the Supreme Court in Taylor, Maryland is “one of the

few [states] . . . maintaining the narrow, more restrictive

common-law definition” of burglary. Appellee’s Br. at 11.

Consequently, the Government argues, “Maryland’s offense of

first-degree burglary . . . fits squarely within the definition

of ‘burglary’ as defined in Taylor.” Id. We reject the

Government’s arguments.

It is true that Maryland’s first degree burglary statute

criminalizes the “burglary of a dwelling” in terms that exactly

match those used in the commentary to the sentencing enhancement

at issue here. Compare Md. Code Ann., Crim. Law § 6-202(a),

with U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii). A mere

comparison of the language, however, does not end the inquiry

because the Maryland statute does not define the term

“dwelling.” We must, therefore, compare the Maryland state

courts’ application of the statute to the federal definition of

generic burglary. As explained above, the ACCA “makes burglary

a violent felony only if committed in a building or enclosed

12
space (‘generic burglary’), not in a boat or motor vehicle.”

Shepard, 544 U.S. at 15–16. If a defendant could be convicted

of burglarizing a dwelling that happens to be a boat or motor

vehicle, Shepard precludes the application of the sentencing

enhancement in Guidelines Section 2L1.2(b)(1)(A)(ii) to such a

conviction.

It is easily conceivable that Defendant’s first degree

burglary conviction from 2000 involved one of Shepard’s

precluded structures: a boat or a motor vehicle. As noted, the

Court of Special Appeals has already deemed a recreational

vehicle a dwelling. Kanaras, 460 A.2d at 71. And if a dwelling

is nothing more than “‘a place where a person resides and

sleeps[,]’” such a place may well be a houseboat, particularly

in a state with as much waterfront as Maryland, or even a car.

McKenzie, 962 A.2d at 1006 (quoting Scott, 776 A.2d at 814).

Yet the United States Supreme Court has clearly excluded such

enclosures from the definition of generic burglary and,

consequently, from application of the crime of violence

enhancement. Shepard, 544 U.S. at 16.

We are also unpersuaded by the Government’s argument that

Maryland’s first degree burglary statute must be “narrow[er],”

and thus, within, the generic definition of burglary because the

Supreme Court in Taylor “specifically cited Maryland as one of

four [s]tates that retained th[e] common-law definition” of

13
burglary. Appellee’s Br. at 10. Put simply, the Supreme

Court’s mentioning of Maryland’s burglary law nearly twenty-five

years ago does not negate the need for federal sentencing courts

to undertake the analysis described above. Since 1990, when

Taylor was decided, Maryland’s highest court has indicated that

the elements of the statute codifying that state’s burglary

offenses are “subject to ongoing clarification in the case law.”

McKenzie, 962 A.2d at 1002. What’s more, the Supreme Court’s

decision in Shepard “makes burglary a violent felony only if

committed in a building or enclosed space (‘generic burglary’),

not in a boat or motor vehicle.” Shepard, 544 U.S. at 15–16.

And at least one defendant in Maryland has had his conviction

for daytime housebreaking upheld after the Court of Special

Appeals determined that a recreational vehicle constituted a

“dwelling” for the purposes of Maryland’s burglary laws—a

holding expressly recognized and left untouched by the Maryland

Court of Appeals in McKenzie. Kanaras, 460 A.2d at 71.

In sum, we conclude that Maryland’s first degree burglary

statute encompasses “conduct that falls outside the generic

definition” of burglary. Perez-Perez, 737 F.3d at 955

(quotation marks omitted). As a consequence, a Maryland

conviction of first degree burglary cannot constitute a crime of

violence for purposes of Guideline Section 2L1.2(b)(1)(A)(ii).

14
The district court erred by applying that enhancement, and

Defendant’s sentence must be vacated.

IV.

For the foregoing reasons, we vacate and remand Defendant’s

sentence.

VACATED AND REMANDED

15
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

There is much with which I agree in the fine majority

opinion. I agree that “generic burglary” has been deemed a

crime of violence sufficient to support an enhanced federal

sentence. I agree that we employ the categorical approach to

determine whether first-degree burglary in Maryland criminalizes

no more than “generic burglary.” I agree that the majority

correctly states the elements of “generic burglary” and

correctly applies those elements to the Guidelines context.

Finally, I agree that, as a federal court, we have no authority

“to place a construction on a state statute different from the

one rendered by the highest court of the State.” Johnson v.

Fankell, 520 U.S. 911, 916 (1997). Indeed, it is precisely for

these reasons that I must respectfully dissent. For in

concluding that Maryland’s first-degree burglary statute

criminalizes more than “generic burglary,” the majority does

“place a construction” on that statute “different from the one

rendered” by Maryland’s highest court.

I.

In Taylor v. United States, the Supreme Court sought to

provide, for purposes of a federal sentencing predicate, a

“uniform definition [of burglary] independent of the labels

employed by the various States’ criminal codes.” 495 U.S. 575,

16
592 (1990). Before settling on a “generic, contemporary meaning

of burglary,” id. at 598, the Court considered the traditional,

common-law definition of burglary, i.e., the breaking and

entering of a dwelling at night, with intent to commit a felony.

In the course of doing so, the Court noted that common-law

burglary is “the core, or common denominator” of contemporary

burglary, id. at 592, and cited Maryland as a rare example of a

state that has retained the narrow, common-law meaning or

“something closely resembling” it, id. at 593 n.6.

Because most other states had expanded the definition of

burglary beyond its common-law origins (e.g., to include

unlawful entry during daytime and into structures other than

dwellings), the Taylor Court adopted a definition of “generic

burglary” that is broader than common-law burglary.

Accordingly, the Court held that “generic burglary” includes

“unlawful or unprivileged entry into, or remaining in, a

building or other structure, with intent to commit a crime.”

Id. at 599. Immediately after adopting this broader, generic

definition, the Court made clear that it includes common-law

burglary. The Court explained that “burglary convictions in

common-law States” categorically qualify as sentencing

predicates because “the conviction necessarily implies that the

defendant has been found guilty of all the elements of generic

burglary.” Id.

17
 Although Taylor focused on the meaning of “burglary” under

the Armed Career Criminal Act (“ACCA”), we apply Taylor’s

generic definition in the Guidelines context as well, with the

added requirement that the burglary involve a dwelling. See

United States v. Bonilla, 687 F.3d 188, 190-91 n.3 (4th Cir.

2012); see also U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (defining

“crime of violence” to include “burglary of a dwelling”). Thus,

because the categorical approach governs our inquiry here,

Henriquez’s Maryland conviction for first-degree burglary

qualifies as a prior crime of violence if it contains the

following elements: (1) an unlawful or unprivileged entry into

(2) a building or other structure (3) that is a dwelling, with

(4) intent to commit a crime.

II.

Maryland’s first-degree burglary statute provides that a

“person may not break and enter the dwelling of another with

intent to commit theft or a crime of violence.” Md. Code Ann.,

Crim. Law § 6-202(a). This definition would seem, as the

Supreme Court suggested in Taylor, to fit comfortably within the

definition of “generic burglary.” Yet my colleagues hold to the

contrary because, while they recognize that the Maryland

definition requires entry into a “dwelling,” they contend that

Maryland courts have construed the term “dwelling” broadly.

18
They say that under Maryland law a dwelling need not be a

“building or other structure” as required by Taylor, but can be

a motor vehicle or boat. With respect, I believe they have

misread Maryland law.

“The common law felony of burglary crossed the seas from

England and became a part of the common law of Maryland.”

Warfield v. State, 554 A.2d 1238, 1247 (Md. 1989). For

centuries burglary remained a common-law offense in Maryland;

only recently has the Maryland General Assembly adopted the

statutory definition set forth above. McKenzie v. State, 962

A.2d 998, 1000 (Md. 2008). State statutes still do not define

“dwelling,” but do instruct that the term “retains its

judicially determined meaning.” Md. Code Ann., Crim. Law § 6-

201. Under Maryland law, when a term “‛retains its judicially

determined meaning,’ it is subject to continued clarification in

case law.” McKenzie, 962 A.2d at 1001.

In 2008, Maryland’s highest court, the Court of Appeals,

addressed the meaning of “dwelling” for purposes of the state’s

burglary statutes and made clear that the common-law definition

of the term continues to control. Id. Indeed, the McKenzie

court expressly noted that “the meaning of ‘dwelling house’ [i]s

the same as its common law meaning for burglary purposes.” Id.

at 1003; see also id. at 1002 & 1002 n.1 (explaining that if a

term “is not otherwise defined by statute, the common law

19
meaning is assumed to be intended” and noting that “Maryland’s

statutory offense of burglary in the first degree is most akin

to common law burglary, without the element of ‘in the

nighttime.’”). Thus, although the meaning of “dwelling” is

“subject to continued clarification in case law,” id. at 1001,

Maryland’s highest court has recently explained that Maryland

defines “dwelling” as it was defined at common law. And because

generic burglary covers “at least the ‘classic’ common-law

definition” of the crime, Taylor, 495 U.S. at 593 (emphasis

added), Maryland first-degree burglary necessarily constitutes a

crime sufficient to support an enhanced federal sentence.

My friends in the majority resist this straightforward

conclusion on the ground that McKenzie indicates that in

Maryland “a dwelling is nothing more than ‘a place where a

person resides and sleeps,’” and so, assertedly, encompasses

boats and motor vehicles. Supra at 13. But, in fact, McKenzie

neither holds nor suggests this. Rather, the McKenzie court

expressly observed that “[t]he test as to whether or not a

building is a ‘dwelling house’ is whether or not it is used

regularly as a place to sleep. No building becomes a ‘dwelling’

by reason of the fact that someone may sleep there on rare

occasions or take an occasional nap there.” McKenzie, 962 A.2d

at 1003 (quoting Poff v. State, 241 A.2d 898, 900 (Md. App.

20
1968)) (emphases added and alteration omitted). 1 In Maryland,

therefore, a person may be convicted of first-degree burglary

only if he unlawfully enters a building or structure and that

building or structure is a dwelling.

To be sure, Maryland courts have repeatedly stressed that a

“dwelling,” for burglary purposes, is a place where one resides

and regularly sleeps. See id. at 1003-06 (canvassing Maryland

case law). But they do so not because a dwelling need not be a

building or structure. Rather, it is because “[c]ommon law

burglary and, by extension, Maryland’s statutes prohibiting

burglary of the ‘dwelling of another,’ are crimes against

habitation.” Id. at 1002 (citing W. Blackstone, 4 Commentaries

169; R. Perkins & R. Boyce, Criminal Law, ch. 3 § 1 (3d ed.

1982); W. LaFave & A. Scott, Substantive Criminal Law, § 8.13(c)

(1986)). Unlike the more expansive generic definition of

burglary, which covers all buildings and structures, common-law

(and so Maryland) burglary covers only buildings and structures

used as a “dwelling.” See LaFave & Scott at § 8.13(c). And,

under Maryland law “[a] structure does not become a dwelling

until someone occupies it.” McKenzie, 962 A.2d at 1002.

1
Notably, in its three-page discussion of the term
“dwelling,” the McKenzie court recognized more than twenty-five
times that, for purposes of Maryland burglary law, a “dwelling”
is a “building” or “structure,” or a unit within a “building” or
“structure.” See id. at 1003-05.

21
 Maryland courts, moreover, have consistently rejected

efforts to stretch the definition of “dwelling” beyond its

narrow origins. Maryland’s intermediate appellate court, the

Court of Special Appeals, for example, has held that basements

of apartment buildings, vacant apartment rooms, furnished but

never occupied homes, warehouses, and churches are not

“dwellings” within the meaning of the state’s burglary statutes.

Id. at 1003-05 (collecting cases); see also Sizemore v. State,

272 A.2d 824, 827 (Md. App. 1971) (“a church is not a dwelling

house”). By contrast, any one of those places would satisfy the

generic definition of burglary. See W. LaFave, 3 Substantive

Criminal Law § 21.1 (2d ed. 2003) (explaining that contrary to

the common-law requirement that burglary involve a dwelling,

“statutes today typically use a much broader term, such as

‘building’ or ‘structure’”). In sum, Maryland’s requirement

that a “dwelling” be a place where one resides and sleeps

renders it narrower, not broader, than Taylor’s buildings and

structures. 2

2
For the same reason, State v. Scott, 776 A.2d 810 (N.J.
2001), is no help to the majority. Like Maryland, New Jersey
follows the common law meaning of “dwelling.” Id. at 814
(explaining that because the New Jersey legislature failed to
define ‘dwelling,’ the court must “consider the common-law
definition of that term”). Moreover, the jury in Scott was
expressly instructed to “make a determination whether, one, [the
temporarily unoccupied apartment in question] was a structure,
and two, whether the structure was a dwelling.” Id. at 812.

22
 Nothing in Kanaras v. State, 460 A.2d 61 (Md. App. 1983) is

to the contrary. In Kanaras, the Court of Special Appeals held

that a stationary motor home that had, for several weeks, been

parked at a campground and hooked up to electrical and plumbing

services, was a “dwelling” for burglary purposes. Id. at 71-72.

The court noted that burglary law was “developed for the purpose

of protecting the habitation of an individual,” and that a

“dwelling” must therefore be a place where one lives and sleeps.

Id. at 69. But, Kanaras recognized, a “dwelling” need not be a

“permanent structure so long as persons intend to live in the

structure and in fact use it as an abode for human habitation.”

Id. at 71 (emphases added). Thus, although the Kanaras court

stated that “it matters not what type of facility the individual

chooses to use for his habitation,” it did so simply to

underscore that a “dwelling” need not be “a formal traditional

mortar and brick” home so long as it is otherwise a building or

structure. Id.

Furthermore, the Kanaras court was careful to confine its

holding to the “facts before” it. Id. at 72; see also McKenzie,

962 A.2d at 1005 (explaining that Kanaras was rooted in the

common law and confined to the “facts presented”). It

specifically cautioned: “We do not hold that under all

circumstances a motor home is a dwelling house.” Id. at 72.

Rather, it noted that it “might reach a different result” under

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different facts –- e.g., had the motor home been “simply parked

on a street rather than a campsite” and not “connected to health

conveniences.” Id. at 71. By emphasizing that the motor home

was “stationary and connected for electrical and sanitary

conveniences,” the Kanaras court made clear that it was a

“structure” affixed to the ground, and therefore qualified as a

“dwelling.” Id. Not only did the court not extend the

definition of dwelling to boats and cars, it expressly warned

that a car or other vehicle, “used as a vehicle primarily for

transportation purposes, should not be regarded as a dwelling

house, even if occasionally used for sleeping.” Id. at 69

(emphasis added). 3

Kanaras, in short, did not stretch the meaning of

“dwelling” to motor vehicles or boats. Instead, it faithfully

followed the common-law definition of “dwelling,” construing the

term as a “building or other structure,” Taylor, 495 U.S. at

599, in which a person resides and sleeps. Indeed, the trial

3
I note that my colleagues’ suggestion that “dwelling”
encompasses cars would render superfluous a separate, more
specific Maryland statute. See Md. Code Ann., Crim. Law § 6-206
(forbidding the “breaking and entering [of a] motor vehicle”).
This, of course, is at odds with Supreme Court instruction that
we avoid construing a statute in a way that renders another more
specific statute superfluous. See, e.g., RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012).

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court in Kanaras expressly instructed the jury that “a dwelling

house refers to a structure which is used regularly as a place

to sleep” and that “[i]n order to find the defendant

guilty . . . you must find that the camper or motor home was a

structure regularly used as a place to sleep.” 460 A.2d at 72

(emphases added). If, as the majority holds, entry into a

“structure” was not an element of burglary under Maryland law,

this jury instruction would have been erroneous. That the

Kanaras court held that the trial judge “did not err” in “giving

[this] instruction” removes any doubt as to the question whether

a “dwelling,” for purposes of Maryland’s burglary statutes,

requires entry into a “building or other structure.” 4

III.

In sum, Maryland’s first-degree burglary statute tracks the

common law and so is “narrower than the generic” definition

developed in Taylor, 495 U.S. at 598. Henriquez’s conviction

4
Thus, in United States v. Martin, No. 12-5001, -- F.3d --
(4th Cir. 2014), we recently held that Maryland’s fourth-degree
burglary statute -- which provides in relevant part that “[a]
person may not break and enter the dwelling of another,” Md.
Code Ann., Crim. Law § 6-205(a) -- does not qualify as generic
burglary because it “does not require that the defendant have
the intent to commit a crime when he enters the dwelling.” Id.
at *5-6. Neither Martin’s lawyer nor the court suggested that
the Maryland statute did not constitute generic burglary
because, pursuant to Maryland law, a “dwelling” need not be a
“building or other structure.”

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thus “necessarily implies that [he] has been found guilty of all

the elements of generic burglary.” Id. at 599. Accordingly,

that conviction categorically qualifies as a proper federal

sentencing predicate. I would affirm.

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