Burglary Convictions in Kentucky Courts (KRS Ch. 511) Cannot Serve as Predicate Offenses – in Sentencing – Under the Federal Armed Career Criminal Act “ACCA” 18 U.S.C. 924(e)

David S. Mejia's Louisville Criminal Defense Blog

Posted 2017-03-28

In federal prosecutions of defendants with prior state convictions:

Burglary Convictions in Kentucky Courts (KRS Ch. 511) Cannot Serve as Predicate Offenses – in Sentencing – Under the Federal Armed Career Criminal Act "ACCA" 18 U.S.C. 924(e).

The federal sentencing law called the Armed Career Criminal Act (ACCA, 18 U.S.C. 924(e)) imposes a 15-year mandatory minimum sentence of imprisonment on certain federal defendants who have three prior convictions for burglary. This article discusses the Supreme Court decision in Mathis v. United States; 579 U.S. ____ (2016), regarding the applicability of prior state court convictions for burglary and when multiple prior convictions for that offense cannot be used as predicate offenses to trigger the 15-year mandatory minimum sentence on defendants convicted in federal court.

Applying the Opinion in Mathis to the Kentucky Burglary laws leads to the inevitable conclusion that prior multiple convictions for burglary in Kentucky courts cannot serve as predicate offenses to the ACCA. The Kentucky Burglary statute (KRS Ch. 511) describes the three degrees of burglary (511.020, 511.030 and 511.040) as "…when with the intent to commit a crime, he knowingly enters or remains unlawfully in a [building, dwelling]."

In analyzing the relevant federal and state sentencing statutes in an appeal out of the State of Iowa, Justice Elena Kagan in Mathis stated that to determine if a past state conviction qualifies for "burglary" federal courts compare the elements of the [state] crime of conviction with the elements of the "generic" version of burglary. Justice Kagan reviewed federal decisions that hold prior state convictions qualify as an ACCA predicate "if, but only if, its elements are the same as or narrower than those of the generic offense." In making this determination, a federal sentencing judge is not permitted to analyze the facts of the prior state convictions, but must look at the elements of the prior state offense. Doing so, a state criminal conviction counts as "burglary" under the ACCA if its elements are the same as, or narrower than, those of the generic offense… [b]ut if the crime of conviction covers any more conduct than the generic offense, in that case it is not an ACCA 'burglary' even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offenses boundaries."

By application of this standard, in Mathis, because the defendant's prior [Iowa] state convictions for burglary covered more conduct than generic burglary, it was error for the federal district court to make a factual determination in deciding that the ACCA applied. (See, Apprendi v. New Jersey, 530 U.S. 466) Thus, ruled Mathis, the Iowa convictions could not qualify as an ACCA predicate. The key is the "elements." An examination of the elements of the offense in Kentucky reveals that the Kentucky Burglary provisions are broader than the generic burglary provision. In the generic version, U.S. Congress meant a crime containing the elements of an unlawful or unprivileged entry into…a building or other structure with intent to commit a crime (See Taylor v. United States, 495 U.S. 575). Kentucky, on the other hand, provides the same elements, but with an additional, alternative element that is broader than the generic: "…knowingly enters or remains…" Kentucky defines burglary, in its essential elements, where an individual enters a building without the intent to commit a crime but – later – after entering, forms the intent to remain and commit a crime. Since Kentucky, like Iowa, has additional elements broader than the generic offense, a prior burglary conviction in Kentucky (irrespective of the facts in those cases) does not qualify as a predicate offense under ACCA.