November 14, 2017
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
1:16-cr-00033-SEB-DML-1 - Sarah Evans Barker, Judge.
Bauer, Easterbrook, and Sykes, Circuit Judges.
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e),
imposes a 15-year minimum sentence on defendants convicted of
illegally possessing a firearm, see id. §
922(g)(1), who also have at least three prior convictions for
a "violent felony" or a "serious drug
offense." Id. § 924(e)(1). After John
Foster pleaded guilty to illegal gun possession under §
922(g)(1), the district court considered him to have three
such qualifying convictions and sentenced him to 15 years in
prison. Foster does not contest that two of his prior
convictions qualify under ACCA. Those convictions were for
dealing in methamphetamine (a serious drug offense), and
Indiana robbery, a violent felony, see United States v.
Duncan, 833 F.3d 751, 752 (7th Cir. 2016). Foster argues
only that his past conviction for burglary-specifically
Indiana's Class B burglary of a dwelling-was not a
violent felony and thus he did not have the requisite
convictions for the sentencing enhancement. But his argument
is foreclosed by United States v. Perry, 862 F.3d
620, 624 (7th Cir. 2017), so we affirm.
defines "violent felony" in relevant part as any
felony that "is burglary." 18 U.S.C. §
924(e)(2)(B)(ii). The term "burglary" in §
924(e)(2)(B)(ii), however, refers only to crimes that fit
within "generic" burglary, which the Supreme Court
has defined as "an unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent
to commit a crime." Taylor v. United States,
495 U.S. 575, 598 (1990). Determining whether burglary under
a given state's law is a violent felony presents a
categorical question that focuses exclusively on the state
crime's elements and not on the facts underlying the
conviction. Mathis v. United States, 136 S.Ct. 2243,
2248 (2016). The state crime's elements must be the same
as, or narrower than, the elements of generic burglary, so
that the crime covers no more conduct than the generic
conviction is for a Class B felony burglary committed in
Indiana in 1988. Indiana's criminal code at the time
separated burglary into three classes of felony. Class C was
the broadest burglary crime; Class B and Class A punished
more severely burglaries committed with specific aggravating
facts. The classes were defined as follows:
A person who breaks and enters the building or structure of
another person, with intent to commit a felony in it, commits
burglary, a Class C felony. However, the offense is a Class B
felony if it is committed while armed with a deadly weapon or
if the building or structure is a dwelling, and a Class A
felony if it results in either bodily injury or serious
bodily injury to any person other than a defendant.
IND. CODE § 35-43-2-1 (1986). The word
"dwelling" was defined elsewhere in the code as
"a building, structure, or other enclosed space,
permanent or temporary, movable or fixed, that is a
person's home or place of lodging." Ind. Code §
35-41-1-10 (1986); see also Ind. Code
§35-31.5-2-107 (2017) (same).
recently held in United States v. Perry, 862 F.3d
620, 624 (7th Cir. 2017), that Indiana Class C burglary is a
violent felony because it is at least as narrow as generic
burglary. Because Class B burglary is a narrower, more
serious offense than Class C burglary, it must therefore also
be a violent felony. See Taylor, 495 U.S. at 599
(noting conviction under narrower state statute
"necessarily implies that the defendant has been found
guilty of all the elements of generic burglary"). A
Class B burglary conviction is narrower because a defendant
must be found guilty of all the elements of Class C burglary,
and thus of generic burglary, plus another
element-that he did so "while armed with a deadly
weapon" or in a "building or structure [that] is a
dwelling." See Brown v. State, 580N.E.2d 329,
331 (Ind.Ct.App. 1991) ("Burglary as a class C felony is
an inherently included lesser offense of burglary as a class
this Foster replies that the word "dwelling" in the
Indiana code is broader than the generic "building or
structure" of Taylor because Indiana defines
"dwelling" to include "other enclosed
space[s], permanent or temporary, movable or fixed." But
Foster's argument about the breadth of
"dwelling" reads out of the burglary statute the
limitation that the crime is a Class B felony only "if
the building or structure is a dwelling/' Ind.
Code § 35-43-2-1 (1986) (emphasis added). Class B
burglary requires that the location burglarized be both a
"building or structure" and a
"dwelling." See Maxwell v. State, 408
N.E.2d 158, 162 (Ind.Ct.App. 1980) (listing "building or
structure" and "dwelling" as separate elements
of Class B burglary); INDIANA PATTERN CRIMINAL JURY
INSTRUCTION No. 4.17 (same). "Building or
structure" is the broader term under Indiana law, and
Class C burglary the broader crime. See Goodpaster v.
State, 402 N.E.2d 1239, 1242 (Ind. 1980) ("[O]ne
may burglarize a 'building or structure' without
necessarily burglarizing a 'dwelling.'").
Because any burglary of a "building or structure"
comprises generic burglary, Class B burglary must also be
because only places that are both a "building or
structure" and a "dwelling" come within Class
B burglary, it does not matter how broadly Indiana defines
"dwelling." The definition of dwelling that Foster
highlights is a general one for Indiana's criminal code.
It also applies to statutes that do not share burglary's
requirement that the dwelling be a building or structure.
See, e.g., Ind. Code § 35-43-1-1 (arson);
id. § 35-43-2-1.5 (residential entry);
id. § 35-45-4-5 (voyeurism). Indiana could
rationally seek to punish burning, entering, or peeping into
dwellings that are not buildings or structures, but not
choose to punish breaking into those spaces as any class of
burglary. And, just as in Perry, Foster has not
identified any case in which Indiana prosecuted the burglary
of a dwelling that was not a building or structure.
Perry, 862 F.3d at 624.
concedes that Perry correctly decided that all of
the locations that Indiana considers to be a "building
or structure" are included in the scope of generic
burglary. Perry, 862 F.3d at 624. So too must the
subset of those locations that are also dwellings. Thus
Perry fully resolves this case: Indiana Class B
burglary is a violent felony and the ...