Burglary for Texas, Burglary for Tennessee (But Not for ACCA)

United States v. Constante, No. 07-41004 (5th Cir. Oct. 6, 2008; revised Oct. 28, 2008) (per curiam) (King, Higginbotham, Wiener)

COV fans will recall that the Fifth Circuit held, in United States v. Herrera-Montes, that a burglary committed under subsection (a)(3) of Tennessee's burglary statute is not generic "burglary" for purposes of guideline §2L1.2's 16-level COV definition. That's because the Taylor burglary definition, among others, requires the specific intent to commit another crime at the time of the entry, whereas Tennessee's (a)(3) burglary does not require the perpetrator to intend to commit the other offense at the time of the entry. Herrera-Montes noted that the same would hold true for subsection (a)(3) of Texas's burglary statute (Penal Code § 30.02), which is nearly identical to Tennessee's.

Leading to the obvious question: whether burglary under Texas Penal Code § 30.02(a)(3) constitutes generic "burglary" for purposes of the ACCA (18 U.S.C. § 924(e)), the statute at issue in Taylor. The Fives have twice said "yes," albeit in unpublished opinions. So Constante goes ahead and makes it official.

More important, though, is what the court said about the burden of establishing that a particular crime qualifies as an ACCA predicate. The Government argued that it wasn't clear whether Constante's burglary conviction was under § 30.02(a)(1)---which does require intent to commit another crime at the time of entry---or under § 30.02(a)(3)---which does not. As the court pointed out, for what seems like the 976th time, the Government bears the burden of proving that a prior conviction qualifies for the sentencing enhancement. Thus, any ambiguity as to which portion of § 30.02 underlay Constante's conviction means the Government failed to carry its burden.

The Government also argued "that after it established the prior convictions, Constante had the burden of proving the invalidity of those convictions by a preponderance of the evidence[,]" citing some cases. Not so, said the court. The cases the Government cited "relate to the constitutional validity of a guilty plea and not to establishing the precise statute under which the defendant was convicted."

There's one final point worth mentioning, in case it pops up in any of your cases. Constante's burglary indictment alleged that he “intentionally or knowingly enter[ed] a habitation, without the effective consent of . . . the owner . . . and attempted to commit or committed theft of property.” The court explained that the

“intentionally or knowingly” language in the indictment refers to a general criminal intent requirement, but not the specific intent element contained in § 30.02(a)(1) and the Taylor definition of generic burglary. See Beasley v. McCotter, 798 F.2d 116, 120 (5th Cir. 1986) (noting that § 30.02(a)(1) requires “specific intent to commit a felony or theft in the building” and § 30.02(a)(3) requires only the more general culpable mental state such as intentionally or knowingly). In other words, under § 30.02(a)(3) a defendant must intentionally or knowingly enter the building, but he would not have to intend to commit a felony, theft, or assault at that time. Only this latter type of specific intent is relevant to the Taylor definition of generic burglary.