NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0398n.06
No. 19-5768
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 10, 2020
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
LEE YERKES, )
DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
BEFORE: MOORE, SUTTON, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge:
After defendant Lee Yerkes pleaded guilty to a federal gun charge, the district court found
him eligible for a mandatory minimum sentence of fifteen years under the Armed Career Criminal
Act (“ACCA”) and sentenced him accordingly. On appeal, Yerkes argues that his previous
convictions for burglary under Tennessee and Georgia law do not qualify as ACCA predicates and
that the district court erred by finding otherwise. We disagree and therefore affirm.
In 2018, Yerkes pleaded guilty to being a felon in possession of a firearm and ammunition,
in violation of 18 U.S.C. § 922(g)(1). At the time, he had seven prior convictions for burglary:
two for aggravated burglary in Tennessee and five for simple burglary in Georgia. See Tenn. Code
Ann. § 39-14-403 (1990); Ga. Code Ann. § 16-7-1(a) (1980). Based on those convictions, the
district court found that Yerkes qualified as an armed career criminal under 18 U.S.C. § 924(e)(1),
No. 19-5768, United States v. Yerkes
which imposes a mandatory minimum sentence of fifteen years if the defendant has at least three
prior convictions “for a violent felony or a serious drug offense, or both.” The district court
imposed a sentence of 180 months of incarceration followed by five years of supervised release.
Yerkes timely appealed his sentence.
I.
The government argues that Yerkes’ prior convictions qualify as ACCA predicates under
the Act’s enumerated-offense clause. See 18 U.S.C. § 924(e)(2)(B)(ii). That clause provides that
certain previous felony convictions, including those for “burglary,” constitute “violent felon[ies].”
To determine whether a past conviction qualifies as burglary under the ACCA, we employ the
“categorical approach” and “compare the elements of the statute forming the basis of the
defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly
understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). Yerkes’ prior convictions
count as ACCA predicates “only if the statute’s elements are the same as, or narrower than, those
of the generic offense.” Id.
“[T]he contemporary understanding of ‘burglary’ has diverged a long way from its
commonlaw roots.” Taylor v. United States, 495 U.S. 575, 593 (1990). “So the proper setting for
examining the contours of generic burglary is not its understanding at common law, but rather its
understanding at the time the ACCA was passed, as evidenced in the criminal codes of the states.”
Greer v. United States, 938 F.3d 766, 771 (6th Cir. 2019). With this frame of reference in mind,
the Supreme Court has clarified that “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.” Taylor, 495 U.S. at 598.
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In Tennessee, “[a]ggravated burglary is burglary of a habitation.” Tenn. Code Ann. § 39-
14-403(a). “Burglary” means, among other things, “[e]nter[ing] a building . . . (or any portion
thereof) not open to the public, with intent to commit a felony, theft or assault.” Tenn. Code Ann.
§ 39-14-402(a)(1); see also Tenn. Code Ann. § 39-14-401(1) (defining “habitation”). At the time
of Yerkes’ Georgia burglary convictions, the statute defined “burglary” thus:
A person commits the offense of burglary when, without authority and with the
intent to commit a felony or theft therein, he enters or remains within the dwelling
house of another or any building, vehicle, railroad car, watercraft, or other such
structure designed for use as the dwelling of another or enters or remains within
any other building, railroad car, aircraft, or any room or any part thereof.
Ga. Code Ann. § 16-7-1(a) (1980).
A.
Yerkes argues that his previous burglary convictions in Tennessee and Georgia state court
do not qualify as generic burglary offenses because the “entry” elements in those state statutes are
overbroad. In United States v. Brown, the defendant had previously been convicted of aggravated
burglary under Tennessee Code § 39-14-403 and raised the same nuanced argument Yerkes makes
here. 957 F.3d 679, 683 (6th Cir. 2020). We summarized that argument as follows:
Brown’s argument hinges on a subtle common-law distinction. The
common law defined burglary narrowly and required more elements than most
modern burglary statutes: “At common law, burglary was confined to unlawful
breaking and entering a dwelling at night with the intent to commit a
felony.” Quarles v. United States, 139 S. Ct. 1872, 1877 (2019). The common law
nevertheless defined the “entry” element of this narrow crime broadly: “As for the
entry, any the least degree of it, with any part of the body, or with an instrument
held in the hand is sufficient.” 4 William Blackstone, Commentaries on the Law of
England 227 (1770).
Despite the breadth of a common-law “entry,” some authorities eventually
distinguished the entry of a body part (a foot or finger) from the entry of
an instrument (a hook or firearm). “[I]f any part of the body be within the house,
hand or foot; this at common law [was] sufficient[.]” 2 Edward H. East, Pleas of
the Crown 490 (1806). A person thus “entered” a home merely by reaching an arm
into it, whether that reach was designed to steal money or unlock a door. See Rollin
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M. Perkins, Criminal Law 155–56 (1957); see also Rex v. Perkes, 171 Eng. Rep.
1204, 1204 (1824). If only an instrument entered a home, by contrast, whether that
entry sufficed depended on the reason for the entry. If a person used the instrument
to commit the intended felony (for example, the person stuck a hook into the home
to grab jewelry or a rifle into it to commit a robbery), both Edward Coke and
William Blackstone treated the entry of that instrument alone as a burglary.
Blackstone, supra, at 227; 3 Edward Coke, Institutes of the Laws of England 64
(1648). But later cases held that if a person used an instrument merely to undertake
the “breaking” and did not also use it to commit the additional felony (for example,
the person used a drill bit only to drill through a door), the entry of that instrument
alone did not suffice. See Rex v. Hughes, 168 Eng. Rep. 305, 305 (1785); 1 William
Hawkins, Pleas of the Crown 162 (6th ed. 1788).
Brown asks us to incorporate this “entry-by-instrument” distinction into the
Armed Career Criminal Act’s generic definition of burglary, which covers the
unlawful “entry into, or remaining in, a building or structure, with intent to commit
a crime.” Taylor, 495 U.S. at 599 (emphasis added). He adds that Tennessee law
defines “enter” to include not just the “[i]ntrusion of any part of the body” but also
the “[i]ntrusion of any object in physical contact with the body or any object
controlled by remote control, electronic or otherwise.” Tenn. Code Ann. § 39-14-
402(b). Brown thus thinks that Tennessee law adopts a broader view of “entry”
than the common-law view because it reaches any object—even one used only to
gain access to a home. (No state decision, as far as we are aware, has answered this
question about § 39-14-402(b)’s scope, and caselaw from before that provision's
enactment did not clearly answer the question either. See State v. Crow, 517
S.W.2d 753, 753–55 (Tenn. 1974).) Since Brown’s view of this state definition
would cover more than his generic definition of “entry,” he concludes that
Tennessee's definition of “enter” disqualifies all Tennessee burglary convictions
from the Armed Career Criminal Act’s reach.
Id. (alterations in original) (parallel citations omitted).
Brown thoroughly analyzed the merits of this argument, see id. at 684–89, and concluded
that the Supreme Court would not “adopt Brown’s view of generic ‘entry,’” id. at 684. For starters,
“we know that Congress did not view the entry element as a demanding one” because even at
common law, little was required to prove an entry: “Sticking a hand or finger through a window
sufficed, as did drilling a hole into the walls of a granary to cause the grain to fall out.” Id. at 685
(citations and internal quotation marks omitted). And the Supreme Court has “refused to read the
[ACCA] as limited to the common-law rules.” Id. As mentioned above, the contemporary
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No. 19-5768, United States v. Yerkes
understanding of burglary is quite different, and the “arcane distinctions embedded in the common-
law definition have little relevance to modern law enforcement concerns.” Taylor, 495 U.S. at
593.
The court characterized the entry-by-instrument issue as “perhaps the prototypical ‘arcane
distinction’ that Taylor would disavow.” Brown, 957 F.3d at 685 (quoting Taylor, 495 U.S. at
593). Congress’s chief concern in passing the ACCA was the risk of a violent encounter inherent
in certain crimes—for burglary, “between the offender and an occupant, caretaker, or some other
person who comes to investigate.” Taylor, 495 U.S. at 588. And the entry-by-instrument
distinction has “no relevance” to that purpose. See Brown, 957 F.3d at 685 (“Which burglar creates
the greater risk of a violent encounter with a startled homeowner? The one who reaches a finger
between a window and an inner shutter before fleeing (which would qualify as an entry under
Brown’s common-law rule), or the one who violently chops at a door with an axe that intrudes into
the home (which would not qualify under his rule)?” (citation omitted)).
The court also examined the criminal codes of the states at the time of the ACCA’s
enactment, noting that it appears “that the majority of jurisdictions that had examined this question
had retained the narrower common-law rule and limited an entry by instrument to the situation
where the instrument is used to remove property from the premises or injure or threaten an
occupant.” Id. at 688 (citation and internal quotation marks omitted). But this fact was not
dispositive, the court stated, because Supreme Court precedent tells us that “if several state
burglary statutes had modestly departed from a common-law rule of burglary when Congress
passed the Armed Career Criminal Act, courts should interpret the Act’s generic definition of
burglary to cover those state statutes.” Id. at 689. Every state statute need not be identical to
qualify as generic burglary; states are instead entitled to some “breathing space.” Id. at 687.
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No. 19-5768, United States v. Yerkes
Because the departure at issue was slight and “did not completely redefine the crime of ‘burglary,’”
the court found that the entry-by-instrument distinction did not make the Tennessee statute broader
than generic burglary. Id. at 688.
B.
Yerkes argues that we are not obligated to follow Brown here because its discussion of the
entry-by-instrument distinction is nonbinding dicta. That is, the court in Brown recognized that a
prior case, Brumbach v. United States, 929 F.3d 791, 795 (6th Cir. 2019), rejected the entry-by-
instrument argument because “a panel of this court cannot overrule [United States v.] Nance.”
Nance held that “Tennessee aggravated burglary represents a generic burglary capable of
constituting a violent felony for ACCA purposes.”1 481 F.3d 882, 888 (6th Cir. 2007).
Recognizing the authority of Nance and Brumbach, the court in Brown stated that “Brown should
direct his argument to our en banc court or the Supreme Court.” 957 F.3d at 683–84. Even so,
the court thought “Brown’s argument weighty enough to warrant a response from this court on the
merits too.” Id. at 684.
Yerkes also points out that he has only two prior convictions for Tennessee aggravated
burglary, and Brown, Brumbach, and Nance do not discuss the statute of his Georgia convictions.2
1
Nance’s holding was, for a time, overruled by this court’s en banc decision in United
States v. Stitt, 860 F.3d 854, 861 (6th Cir. 2017) (en banc). After the Supreme Court granted
certiorari and reversed, see United States v. Stitt, 139 S. Ct. 399, 408 (2018), we recognized that
“Nance’s holding . . . is once again the law of this circuit,” Brumbach, 929 F.3d at 794.
2
We addressed the statute of Yerkes’ Georgia burglary convictions in Richardson v. United
States, 890 F.3d 616 (6th Cir. 2018), cert. denied, 139 S. Ct. 349 (2018). There, the court
determined that the statute is divisible and that the elements of the defendant’s convictions—
“(1) an unlawful entry (2) into a dwelling house or building (3) with intent to commit a crime
therein”— “substantially conform to the generic definition of burglary announced by the Supreme
Court.” Id. at 629. As discussed below, the Shepard documents here similarly show that in all
five Georgia burglary counts, Yerkes pleaded guilty to burgling either a dwelling house or a
building.
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No. 19-5768, United States v. Yerkes
But even if we are not bound by it, we find Brown’s discussion—and rejection on the merits—of
the entry-by-instrument argument persuasive. Yerkes offers no reason for us to treat the Georgia
statute differently from the Tennessee statute in this respect, and upon examining the two, we find
none. Accordingly, we reject his argument that the statutes are overbroad based on their “entry”
elements.
II.
Yerkes offers another reason why his prior burglary convictions should not count as ACCA
predicates. He claims that the government failed to prove that his burglary offenses were
“committed on occasions different from one another.” See 18 U.S.C. § 924(e)(1).
[T]wo offenses are committed on different occasions under the Act if: (1) it is
possible to discern the point at which the first offense is completed, and the
subsequent point at which the second offense begins; (2) it would have been
possible for the offender to cease his criminal conduct after the first offense, and
withdraw without committing the second offense; or (3) the offenses are committed
in different residences or business locations.
United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011) (citation and internal quotation marks
omitted).
Shepard documents provide the following information. See Shepard v. United States, 544
U.S. 13 (2005). One indictment in the Catoosa County, Georgia Superior Court charged Yerkes
with four counts of burglary of a “dwelling house.” Each count listed a different address and
owner for the burgled dwelling house in question. The first count alleged a commission date of
August 22, 2008, while the other three listed a commission date of September 25, 2008. A separate
indictment charged Yerkes with burgling a “business premises” on July 14, 2008, and listed its
name and address. Two “final disposition” documents show that Yerkes pleaded guilty to all five
burglary counts. Two indictments in the Hamilton County, Tennessee Criminal Court charged
Yerkes with aggravated burglaries of two different “habitation[s],” each with a different owner.
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No. 19-5768, United States v. Yerkes
Each indictment listed a different commission date for the aggravated burglaries: July 7, 2008,
and July 14, 2008. Two criminal judgments show that Yerkes pleaded guilty to these two
aggravated burglary charges.
Because each of the seven counts specified a “different residence[ ] or business
location[ ],” Paige, 634 F.3d at 873, the Shepard documents show that Yerkes committed the
burglary offenses (or at very least, three of them) on different occasions. But Yerkes contends that
“the Shepard-approved evidence does not establish that he necessarily admitted that he committed
the burglaries on occasions different from one another.” (Emphasis added.) That is, aside from
one “reference to one specific individual (including her address for purposes of restitution)[,]
nothing in the judgment identifies the date/location of any offense, nor does anything else in the
judgment indicate that Mr. Yerkes necessarily admitted the time or location of any burglary.”
Because “[t]he time or location of the crime, then, is merely a fact – not an element,” Yerkes argues
that relying on the above information from the indictments would violate his Sixth Amendment
rights. See United States v. King, 853 F.3d 267, 272 (6th Cir. 2017).
United States v. Hennessee forecloses this argument. 932 F.3d 437, 444 (6th Cir. 2019),
cert. denied, 140 S. Ct. 896 (2020). “[A] district court may consider both elemental and non-
elemental facts contained in Shepard-approved documents to determine whether prior felonies
were committed on occasions different from one another for purposes of the ACCA.” Id. The
district court here properly did so, and correctly imposed an ACCA-enhanced sentence.
III.
For these reasons, we affirm the district court’s judgment.
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No. 19-5768, United States v. Yerkes
KAREN NELSON MOORE, Circuit Judge, dissenting. The majority opinion departs
from well-established principles regarding the application of the categorial approach to burglary
convictions in Armed Career Criminal Act (“ACCA”) cases as set forth by the Supreme Court.
The majority applies the entry-issue analysis from United States v. Brown, 957 F.3d 679 (6th Cir.
2020), to reject Yerkes’s arguments. But the Brown analysis is not binding because it is dicta, nor
is it persuasive due to its significant errors. Proper application of the categorical approach from
Taylor v. United States, 495 U.S. 575 (1990), demonstrates that Yerkes’s Georgia burglary
convictions are not categorical matches for generic burglary because Georgia’s entry element of
burglary is broader than the entry element of generic burglary.
We review de novo “[w]hether a defendant is a career offender.” United States v. Cooper,
739 F.3d 873, 877 (6th Cir. 2014). We apply the categorical approach to determine whether a
defendant’s prior conviction for burglary is an ACCA predicate offense. Greer v. United States,
938 F.3d 766, 770–71 (6th Cir. 2019).1 Under the categorical approach, we “compare the elements
of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’
crime.” Id. at 771 (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)). If the elements
of the state criminal statute “are broader than those of generic burglary,” a prior state conviction
1
We classify a defendant as an armed career criminal if he is convicted under 18 U.S.C. § 922(g)(1) for
possessing a firearm as a convicted felon and if he “has three previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). A “violent felony”
is
any crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.
§ 924(e)(2)(B). “We refer to § 924(e)(2)(B)(i) as the ‘use of force clause,” the list of offenses in § 924(e)(2)(B)(ii) as
the “enumerated offenses” clause, and the remaining “portion of § 924(e)(2)(B)(ii) . . . as the ‘residual clause.’”
United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014). Here, we consider “burglary” under the enumerated
offense clause. The residual clause was ruled unconstitutional in Johnson v. United States, 135 S. Ct. 2551, 2563
(2015).
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No. 19-5768, United States v. Yerkes
under that statute does not qualify as generic burglary under the ACCA. United States v. Stitt,
139 S. Ct. 399, 405 (2018) (quoting Mathis v. United States, 136 S. Ct. 2243, 2257 (2016)).
Yerkes contends that entry for Georgia burglary is broader than generic entry. Specifically,
he argues that the generic definition of “entry” with an instrument is when an instrument crosses
the threshold and the instrument is used or intended to be used to commit a further felony inside
(instrument-for-crime approach). Appellant Br. at 8; Reply Br. at 2 & n.1. Georgia penalizes as
an entry when an instrument simply crosses the threshold of the structure (any-instrument
approach). Appellant Br. at 8; Reply Br. at 2 & n.2. Under the generic definition of entry, Yerkes
argues, Georgia penalizes mere attempted entries, and therefore criminalizes attempted burglaries,
which is broader than generic burglary. Appellant Br. at 8. Thus, it is necessary to determine
(1) the definition of generic entry and (2) whether Georgia burglary is broader than generic
burglary based on the entry element.
I. Generic entry is defined as the majority, instrument-for-crime approach
Taylor did not define the entry element of generic burglary, but it did give federal courts
the method for discerning the generic definition of entry. See Taylor, 495 U.S. at 598. The
Supreme Court determined that “Congress meant by ‘burglary’ the generic sense in which the term
is now used in the criminal codes of most States.” Id. (emphasis added); see also id. at 589
(“Congress, at least at that time [in 1986] had in mind a modern ‘generic’ view of burglary, roughly
corresponding to the definitions of burglary in a majority of the States’ criminal codes.” (emphasis
added)); Stitt, 139 S. Ct. at 406. Thus, the question is not what the understanding of burglary was
at common law, “but rather [Congress’s] understanding at the time the ACCA was passed.” Greer,
938 F.3d at 771. It is well established that in this circuit, we find the generic definition “by
surveying how the crime is described across jurisdictions, as well as consulting sources such as
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No. 19-5768, United States v. Yerkes
the Model Penal Code.” Cooper, 739 F.3d at 879 (quoting United States v. Rede-Mendez, 680
F.3d 552, 556 (6th Cir. 2012)); see also Keeley v. Whitaker, 910 F.3d 878, 882 (6th Cir. 2018);
Greer, 938 F.3d at 771; United States v. Yates, 866 F.3d 723, 733 (6th Cir. 2017). In its two most
recent ACCA-burglary cases, the Supreme Court followed Taylor, adopting the majority state view
as the generic definition of certain aspects of burglary. See Quarles v. United States, 139 U.S.
1872, 1878 (2019) (intent for remaining-in burglary); Stitt, 139 S. Ct. at 406 (locational element).
In 1986, the majority rule among the states was the instrument-for-crime approach;
nineteen states had adopted the instrument-for-crime approach and eight had adopted the any-
instrument approach. See Nev. Rev. Stat. § 193.0145 (1985); Wash. Rev. Code § 9A.52.010(2)
(1985); Walker v. State, 63 Ala. 49, 51–52 (1879); Sears v. State, 713 P.2d 1218, 1220 (Alaska Ct.
App. 1986); Thompson v. State, 477 S.W.2d 469, 471–72 (Ark. 1972); Foster v. State, 220 So.2d
406, 407 (Fla. Dist. Ct. App. 1969); People v. Davis, 279 N.E.2d 179, 181 (Ill. App. Ct. 1972);
Mattox v. State, 101 N.E. 1009, 1009 (Ind. 1913); State v. Ervin, 573 P.2d 600, 601 (Kan. 1977)2;
Stamps v. Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980); State v. Liberty, 280 A.2d 805, 808
(Me. 1971); Commonwealth v. Burke, 467 N.E.2d 846, 849 (Mass. 1984); State v. Hodges, 575
S.W.2d 769, 772 (Mo. Ct. App. 1978); State v. O’Leary, 107 A.2d 13, 15 (N.J. Super. Ct. App.
Div. 1954); State v. Tragni, 449 N.Y.S.2d 923, 928 (N.Y. Sup. Ct. 1982); State v. Sneed,
247 S.E.2d 658, 659 (N.C. Ct. App. 1978); State v. Crawford, 80 N.W. 193, 194 (N.D. 1899);
State v. Chappell, 193 S.E. 924, 924–25 (S.C. 1937); Mirich v. State, 593 P.2d 590, 593 n.4 (Wyo.
2
The government argues that Kansas should be counted along with the states following the any-instrument
approach, citing State v. Martin, 658 P.2d 1024 (Kan. 1983), in support. Appellee Br. at 19. Martin addresses the
Kansas state crime of eavesdropping, however. 658 P.2d at 1026.
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No. 19-5768, United States v. Yerkes
1979) (all applying the instrument-for-crime approach).3 But see Ariz. Rev. Stat. Ann. § 13-
1501(2) (1978); 11 Del. Code Ann. § 829(b) (1972); Tex. Code Ann. § 30.02(b)(2) (1973); Utah
Code Ann. § 76-6-201(4)(b) (1973); People v. Osegueda, 210 Cal. Rptr. 182, 185–87 (Cal. App.
Dep’t Super. Ct. 1984); Mullinnix v. State, 338 S.E.2d 752, 753 (Ga. Ct. App. 1985); State v.
Tixier, 551 P.2d 987, 988–89 (N.M. Ct. App. 1976); State v. Crow, 517 S.W.2d 751, 754–55 (Tenn.
1974) (all applying the any-instrument approach). Contemporary commentators recognized that
the instrument-for-crime approach was the majority rule, including Professors LaFave, Scott,
Perkins, and Boyce. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
§ 8.13(b) (1986); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 254–55 (3d ed. 1982) (“But
in any event the rule became firmly established that the insertion of a tool or instrument does not
constitute an entry, within the law of burglary, if it is used merely to effect a breaking.”). Tellingly,
neither the government nor the majority disputes that the majority rule in 1986 was the instrument-
for-crime approach. See Appellee Br. at 18–19; Majority Op. at 5. The instrument-for-crime
approach thus defines generic entry.
The majority follows the analysis in Brown, which concluded that the definition of generic
entry is the minority, any-instrument approach. Majority Op. at 3–7; see also Brown, 957 F.3d at
683–89. This analysis is not binding, however, because Brown, a Tennessee-aggravated-burglary
case, held that Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S. Ct.
974 (2020), foreclosed the defendant’s entry argument. Brown, 957 F.3d at 683–84. In any event,
the majority’s reiteration of the Brown analysis is unpersuasive because it makes four significant
errors.
The government characterizes some of these states as merely having “language in their jurisprudence
3
suggesting that they endorsed” the instrument-for-crime approach, Appellee Br. at 21 n.7, but this is an
understatement. Each state cited has set forth the instrument-for-crime approach as its definition of entry.
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No. 19-5768, United States v. Yerkes
First, the majority bucks binding Supreme Court precedent, Taylor, by adopting a common-
law approach to defining the contours of generic burglary. Majority Op. at 3–7. It is true that
Congress “had in mind at least the ‘classic’ common-law definition when [it] considered the
inclusion of burglary as a predicate offense.” Taylor, 495 U.S at 593. But the Court has been
explicit: “[W]e made clear in Taylor that Congress intended the definition of ‘burglary’ to reflect
‘the generic sense in which the term [was] used in the criminal codes of most States’ at the time
the [ACCA] was passed.” Stitt, 139 S. Ct. at 406 (second alteration in original) (quoting Taylor,
495 U.S. at 598). Crucially, Taylor expressly declined to adopt a common-law-only focus. Taylor,
495 U.S. at 593–96. The majority and Brown reject the clear dictates of Taylor by failing to define
generic entry as the majority state rule in 1986.
Second, even following a common-law-only focus, the majority and Brown erroneously
define generic entry. The common-law rule is the same as the modern, generic rule—the
instrument-for-crime approach. Wayne R. LaFave, 3 Substantive Criminal Law § 21.1(b), 210
n.36 (2d ed. 2003) (“Today, the majority view is ‘that an entry can occur if an instrument, “being
used to commit the felony intended,” passes the line of the threshold, regardless of whether the
instrument was used in the breaking,’ while the minority position is ‘that an entry can occur if any
instrument, whether or not intended for use to commit a felony, crosses the threshold.’” (citation
omitted)). As Professor LaFave explained, though common-law commentators such as William
Blackstone, Edward Coke, and Matthew Hale did not expressly distinguish between entry with an
instrument with and without the intent to use the instrument to commit a crime within a structure,
“it might be implied from their examples.” Id. Upon further examination of these examples, it is
clear that Blackstone, Coke, and Hale viewed entry by instrument in a manner consistent with the
instrument-for-crime approach. See 4 William Blackstone, Commentaries on the Law of England
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No. 19-5768, United States v. Yerkes
227 (1769) (“As for the entry, any the least degree of it, with any part of the body, or with an
instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or a hook in
at the window to draw out goods, or a pistol to demand one’s money, are all of them burglarious
entries.”) (emphasis added); 1 Matthew Hale, The History of the Pleas of the Crown 555 (1736)
(reiterating the hook and pistol examples); 3 Edward Coke, Institutes of the Laws of England 64
(1644) (same). The same is true of other common-law sources; though the two approaches are not
expressly distinguished, the examples relied upon are consistent with the instrument-for-crime
approach. See Rex v. Hughes, 168 Eng. Rep. 305, 305 (1785); 2 Edward H. East, Pleas of the
Crown 490 (1806); 1 William Hawkins, Pleas of the Crown 162 (6th ed. 1788). The government
omits this crucial context, Appellee Br. 17, as did the panel in Brown, 957 F.3d at 684. Upon
closer scrutiny, not one common-law authority from the government’s brief can be said to support
its contention that the common-law rule was the any-instrument approach. See Appellee Br. at
17–19. And Brown does not cite a single common-law example following the any-instrument
approach. The panel in Brown merely inferred a broad approach to entry at common law by citing
cases addressing physical, bodily entries, 957 F.3d at 685, and cases that followed the instrument-
for-crime approach, id. (citing Walker, 63 Ala. at 51–52; Crawford, 80 N.W. at 194–95).4 Given
the authorities discussed above, the majority’s conclusion that the traditional rule was the any-
instrument approach is confounding.
4
The Brown panel relies on two state cases adopting the instrument-for-crime approach. In Walker, the
Supreme Court of Alabama expressly stated that “the intrusion of the instrument is not, of itself, an entry.” 63 Ala. at
52. Rather, the instrument must be “necessary to the consummation of the criminal intent.” Id. The Supreme Court
of North Dakota cited the same rule in Crawford and concluded that an entry had occurred because the defendant had
used a tool to bore a hole into the granary, knowing that the tool “set the law of gravitation in motion,” i.e. caused the
grain to spill through the hole. 80 N.W. at 194 (“When the auger was withdrawn from the aperture made with it, the
corn ran into the sack he used in its asportation. There was a breaking and entry . . . .”).
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The third error—and the crux of the majority’s argument—is the conclusion that the
difference between the instrument-for-crime and any-instrument approaches is insignificant. The
difference between the instrument-for-crime and the any-instrument approaches is not an “arcane
distinction[ ]” from common law that does not fit within the generic definition of burglary, Taylor,
495 U.S. at 593; Majority Op. at 5, nor is Yerkes “seizing on modest state-law deviations from the
generic definition of burglary,” Quarles, 139 S. Ct. at 1880; see Majority Op. at 5–6. The
instrument-for-crime approach criminalizes only entries that were committed with an instrument
intended to be used to commit a crime inside the structure. When an instrument crosses the
threshold without this intent, it constitutes an attempted entry. Therefore, the any-instrument
approach criminalizes attempted burglaries. Attempted burglary is inconsistent with the generic
definition of burglary. In James v. United States, the Court expressly concluded that attempted
burglary does not “qualify as one of the specific crimes enumerated in clause (ii) . . . . because it
does not meet the definition of burglary under ACCA that this Court set forth in Taylor.” 550 U.S.
192, 197 (2007), overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015).
Neither the majority nor Brown addresses James. The difference between these two approaches
is not a distinction without a difference.
The final error made by the majority is its conclusion that the instrument-for-crime
approach does not satisfy “Congress’s chief concern in passing the ACCA,” “the risk of a violent
encounter” inherent in burglaries. Majority Op. at 5. Relatedly, the government contends that
defining generic entry under the instrument-for-crime approach will mean that Congress intended
to enact a “self-defeating statute” because if the instrument-for-crime approach were the definition
of generic entry, then burglary convictions in states that today have not spoken on the issue or that
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have adopted the any-instrument approach would no longer serve as ACCA predicates. Appellee
Br. at 25 (quoting Quarles, 139 S. Ct. at 1879). These arguments are misguided.
Adopting the instrument-for-crime approach to generic entry will not undermine
Congress’s purpose in passing the ACCA. The majority is correct insofar as attempted burglary
implicates congressional intent in including dangerous crimes as predicates in the ACCA. The
Court concluded in James that Congress believed attempted burglary presented a high risk of
violence and thus intended the ACCA to include attempted burglary convictions. See James, 550
U.S. at 203–07. But these concerns did not motivate Congress to include attempted burglary in
the enumerated offenses clause—instead, they motivated Congress to cover attempted burglary
through the residual clause. See id. at 197, 209. The Court later held that Congress exceeded
constitutional restraints when it did so, however. Johnson, 135 S. Ct. at 2563 (“We hold that
imposing an increased sentence under the residual clause of the Armed Career Criminal Act
violates the Constitution’s guarantee of due process.”). Thus, properly applying Taylor to discern
the contours of the entry element of generic burglary does not undermine congressional intent as
to the inclusion of burglary in the enumerated offenses clause.
As for the government, it aims at the wrong targets. We look to the majority rule of the
states when the ACCA was enacted. Stitt, 139 S. Ct. at 406. Therefore, the government’s focus
on the minority of states’ approaches today is misdirected. Additionally, there is no basis for the
government’s assertion that determining that generic entry is defined by the instrument-for-crime
approach will necessarily impact the jurisdictions that have yet to address the issue or that this
concern should drive our analysis. In Quarles, only five states had addressed the issue in 1986,
and the fact that the vast majority of the states presently had not spoken on the issue did not stop
the Court from adopting the majority approach of the few states. See Quarles, 139 S. Ct. at 1878
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& n.1. The government provides no authority for its implied proposition that a state that is silent
on the entry rule will be considered to have adopted the minority, any-instrument approach. The
government cites Stokeling v. United States, 139 S. Ct. 544, 552 (2019), and United States v.
Castleman, 572 U.S. 157, 167 (2014), for the general proposition that Congress would not enact a
provision that excludes many state statutes. In Stokeling, “it [was] clear that many States’ robbery
statutes would not qualify as ACCA predicates under Stokeling’s reading” because his reading
impacted other robbery offenses. 139 S. Ct. 544, 552 (2019). The government outlines no such
ripple effect here. And both Stokeling and Castleman were non-burglary cases, meaning neither
had to contend with Taylor. See Stokeling, 139 S. Ct. at 551–52 (robbery); Castleman, 572 U.S.
at 163 (domestic violence). Given the clarity of Taylor’s exposition of congressional intent, it is
difficult to see why declining to follow Taylor would better follow congressional intent under these
circumstances.
In sum, Taylor is clear, binding precedent that compels one conclusion—the majority,
instrument-for-crime approach provides the definition of the entry element of generic burglary.
II. Georgia burglary criminalizes conduct broader than generic burglary
Once the generic definition is determined, we compare the elements of the state offense to
those of the generic offense, focusing on “[t]he minimum culpable conduct criminalized by the
state statute . . . to which there is a ‘realistic probability, not a theoretical possibility, that the state
would apply the statute.” Yates, 866 F.3d at 728 (quoting Moncrieffe v. Holder, 569 U.S. 184, 191
(2013)). Though the Georgia statute does not define entry, see Ga. Code Ann. § 16-7-1(a) (1980),
Georgia courts have interpreted “entry” to mean “‘break[ing] the plane’ of the structure.”
Mullinnix, 338 S.E.2d at 753 (quotations in original); see also Meadows v. State, 590 S.E.2d 173,
177–78 (Ga. Ct. App. 2003). Georgia applies the any-instrument approach, and therefore the
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minimum culpable conduct under the Georgia burglary statute is attempted burglary based on an
attempted entry.
There is a realistic probability that Georgia would apply its burglary statute to attempted
entries. The most common method of demonstrating a realistic probability is for a defendant to
“point to his own case or other cases in which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007). But that is not the only method. For example, we have relied on the plain text of a
statute to hold that there is a realistic probability that the state would apply its statute to the
minimum culpable conduct in question. See United States v. Camp, 903 F.3d 594, 602 (6th Cir.
2018), cert. denied, 139 S. Ct. 845 (2019); see also United States v. Havis, 907 F.3d 439, 446 (6th
Cir. 2018) (explaining that “[i]f the text of Tennessee’s attempt statute was plainly overbroad, that
would be a different matter” regarding whether a defendant must supply a case to demonstrate a
realistic probability), rev’d on other grounds, 927 F.3d 382 (6th Cir. 2019) (en banc). Like plain
statutory text, pattern jury instructions may also be so clear as to demonstrate a realistic probability,
not a theoretical possibility, that a state statute is applied to the least of the acts criminalized. See
United States v. Daniels, 915 F.3d 148, 163 (3d Cir. 2019), cert. denied, 140 S. Ct. 1264 (2020);
United States v. Glass, 904 F.3d 319, 323 (3d Cir. 2018), cert. denied, 139 S. Ct. 840 (2019);
United States v. McCranie, 889 F.3d 677, 680 (10th Cir. 2018), cert. denied, 139 S. Ct. 1260
(2019).
Georgia’s pattern jury instructions show a realistic probability that Georgia criminalizes
any-instrument entries. Georgia Suggested Pattern Jury Instruction 2.62.31 provides, “[t]o
constitute ‘entry,’ the evidence need only show a [‘]breaking of the plane’ of the structure.” 2 Ga.
Suggested Pattern Jury Instr., Crim. 2.62.31 (4th ed. 2020). The instruction’s meaning is plain,
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and therefore there is a realistic probability Georgia applies its burglary statute to attempted entries.
Accordingly, Georgia’s entry element is broader than the generic entry element as defined by the
instrument-for-crime approach, and Georgia burglary is not a categorical match for generic
burglary.
III. Conclusion
For the reasons set forth above, Yerkes’s Georgia burglary convictions cannot serve as
ACCA predicates. Once Yerkes’s five Georgia convictions are eliminated from his ACCA-
predicate tally, he is left with only his two Tennessee convictions. This is insufficient for Yerkes
to be classified as an armed career criminal for sentencing under the ACCA. Yerkes’s sentence
should be vacated, and his case remanded for resentencing. For these reasons, I dissent.
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