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Smith v. United States

United States Court of Appeals, Seventh Circuit

December 13, 2017

Michael Smith, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee. United States of America, Plaintiff-Appellee,
v.
Michael J. Khoury, Defendant-Appellant.

          Argued November 14, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 6606 - Robert W. Gettleman, Judge.

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:15-CR-30013-DRH-1 - David R. Herndon, Judge.

          Before Bauer, Easterbrook, and Sykes, Circuit Judges.

          EASTERBROOK, CIRCUIT JUDGE.

         These appeals, which we have consolidated for decision, present the question whether a conviction for residential burglary in Illinois under 720 ILCS 5/19-3 (1982) counts as "burglary" for the purpose of the Armed Career Criminal Act, 18 U.S.C. §924(e). Taylor v. United States, 495 U.S. 575 (1990), holds that a state's label is not dispositive and that a conviction counts only if the offense meets a federal definition of "generic burglary". We held in United States v. Haney, 840 F.3d 472 (7th Cir. 2016), that the pre-1982 version of Illinois law covering ordinary burglary did not satisfy the federal definition. Michael Smith and Michael Khoury (collectively "defendants") ask us to hold the same about the residential-burglary statute under which they were convicted.

         The facts and procedural histories of these cases do not matter. It is enough to say that each defendant was convicted of possessing a firearm, see 18 U.S.C. §922(g)(1), despite earlier convictions making that illegal. Each is serving 180 months' imprisonment, the statutory floor for someone convicted of this crime who has three or more earlier convictions for a violent felony or serious drug offense. Section 924(e)(2)(B)(ii) includes "burglary" in the list of violent felonies but does not define "burglary." For both defendants a 180-month sentence is proper only if a conviction for residential burglary in Illinois under the 1982 revision of 720 ILCS 5/19-3 is "generic burglary" under Taylor. The appeals in both defendants' cases arise from collateral attacks, but the United States waived all procedural defenses in order to facilitate appellate resolution of the question, which affects many other sentences. None of the procedural matters is jurisdictional, so the waivers are conclusive. See Wood v. Mi-lyard, 566 U.S. 463 (2012).

         Both district judges relied on Dawkins v. United States, 809 F.3d 953 (7th Cir. 2016), which they read as conclusively establishing that residential burglary in Illinois satisfies Taylor. But the only question addressed in Dawkins was whether residential burglary in Illinois includes the element of breaking and entering; we answered yes. Dawkins did not consider whether the Illinois offense includes the element of entering a "building or other structure" (Taylor, 495 U.S. at 598). That a given decision resolves one legal argument bearing on a subject does not mean that it has resolved all possible legal arguments bearing on that subject. See Rodriguez-Contreras v. Sessions, 873 F.3d 579, 580 (7th Cir. 2017). So defendants' argument about the building-or-structure element is open.

         In Illinois, "[a] person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." 720 ILCS 5/19-3(a). (This is how that statute read between 1982 and 2001; changes since then are irrelevant for the purpose of §924(e).) Another statute defines "dwelling":

(a)Except as otherwise provided in subsection (b) of this Section, "dwelling" means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.
(b) For the purposes of Section 19-3 of this Code, "dwelling" means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.

720 ILCS 5/2-6. (This definition has been in force since 1987, before defendants' predicate crimes occurred.) Defendants maintain that "a tent, a vehicle, or other enclosed space" is not a "structure" as the Supreme Court required in Taylor- which adopted as the common-law definition of burglary

any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.

         495 U.S. at 599. Subsection (a), in which the phrase "a tent, a vehicle, or other enclosed space" appears, does not apply to the crime of residential burglary. To be convicted of that offense, a person must enter "a house, apartment, mobile home, trailer, or other living quarters". And that phrase seems to come ...


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