First Circuit Notes Split Re "Unlawful or Unprivileged" Element of Generic Burglary under Taylor

Per U.S. v. Bennett, 469 F.3d 46 (1st Cir. Nov. 21, 2006)

Defendant-appellant William J. Bennett ("Bennett") pled guilty to possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He now appeals the sentencing enhancements applied pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), on the basis that (1) the predicate conviction for breaking and entering a steel storage shed does not constitute a violent felony . . . .

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Under the ACCA, a defendant who violates § 922(g)(1) and has three previous convictions for violent felonies or serious drug offenses is subject to a minimum sentence of 180 months. 18 U.S.C. § 924(e)(1). The definition of "violent felony" includes, inter alia, the crime of burglary, but the term "burglary" itself is not defined in the statute. Id. § 922(e)(2).

The Supreme Court, however, addressed the meaning of burglary as used in the ACCA in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The Court first rejected both the view that the definition depends on the label adopted by the state of conviction and the idea that Congress meant to include only the common-law definition of burglary as "breaking and entering of a dwelling at night, with intent to commit a felony." Id. at 592, 110 S.Ct. 2143. Rather, the Court concluded that

"Congress meant by 'burglary' the generic sense in which the term is now used in the criminal codes of most states. Although 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."

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Bennett [] contends that his conviction for breaking and entering a steel storage shed does not meet Taylor's definition because the statute under which he was convicted did not require an "unlawful or unprivileged" entry, and the record before the court did not indicate that his entry was "unlawful or unprivileged." Bennett did not raise this issue below and therefore we review for plain error. United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001). We have not addressed the contours of the "unlawful or unprivileged" element of generic burglary under Taylor, and there exists a circuit split on the issue. Compare United States v. Bowden, 975 F.2d 1080, 1084-85 (4th Cir.1992) (finding that "the entry of a man who enters without breaking with intent to commit a felony or larceny is neither lawful nor privileged, so it must be within Taylor "), with United States v. Maness, 23 F.3d 1006, 1008-09 (6th Cir.1994) (finding that the same statute at issue in Bowden "does not satisfy Taylor's definition of generic burglary" because intent to commit a crime is a "separate and distinct element[ ]" from unlawful or unprivileged entry). In light of conflicting case law, any error that might have been committed by the district court was not "obvious," and therefore not plain error. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ("At a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law.").