                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0398n.06

                                           No. 19-5768

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                  Jul 10, 2020
 UNITED STATES OF AMERICA,                               )                   DEBORAH S. HUNT, Clerk
                                                         )
        Plaintiff-Appellee,                              )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE EASTERN
 LEE YERKES,                                             )
                                                                DISTRICT OF TENNESSEE
                                                         )
        Defendant-Appellant.                             )
                                                         )



BEFORE: MOORE, SUTTON, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge:

       After defendant Lee Yerkes pleaded guilty to a federal gun charge, the district court found

him eligible for a mandatory minimum sentence of fifteen years under the Armed Career Criminal

Act (“ACCA”) and sentenced him accordingly. On appeal, Yerkes argues that his previous

convictions for burglary under Tennessee and Georgia law do not qualify as ACCA predicates and

that the district court erred by finding otherwise. We disagree and therefore affirm.

       In 2018, Yerkes pleaded guilty to being a felon in possession of a firearm and ammunition,

in violation of 18 U.S.C. § 922(g)(1). At the time, he had seven prior convictions for burglary:

two for aggravated burglary in Tennessee and five for simple burglary in Georgia. See Tenn. Code

Ann. § 39-14-403 (1990); Ga. Code Ann. § 16-7-1(a) (1980). Based on those convictions, the

district court found that Yerkes qualified as an armed career criminal under 18 U.S.C. § 924(e)(1),
No. 19-5768, United States v. Yerkes


which imposes a mandatory minimum sentence of fifteen years if the defendant has at least three

prior convictions “for a violent felony or a serious drug offense, or both.” The district court

imposed a sentence of 180 months of incarceration followed by five years of supervised release.

Yerkes timely appealed his sentence.

                                                 I.

       The government argues that Yerkes’ prior convictions qualify as ACCA predicates under

the Act’s enumerated-offense clause. See 18 U.S.C. § 924(e)(2)(B)(ii). That clause provides that

certain previous felony convictions, including those for “burglary,” constitute “violent felon[ies].”

To determine whether a past conviction qualifies as burglary under the ACCA, we employ the

“categorical approach” and “compare the elements of the statute forming the basis of the

defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly

understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). Yerkes’ prior convictions

count as ACCA predicates “only if the statute’s elements are the same as, or narrower than, those

of the generic offense.” Id.

       “[T]he contemporary understanding of ‘burglary’ has diverged a long way from its

commonlaw roots.” Taylor v. United States, 495 U.S. 575, 593 (1990). “So the proper setting for

examining the contours of generic burglary is not its understanding at common law, but rather its

understanding at the time the ACCA was passed, as evidenced in the criminal codes of the states.”

Greer v. United States, 938 F.3d 766, 771 (6th Cir. 2019). With this frame of reference in mind,

the Supreme Court has clarified that “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.” Taylor, 495 U.S. at 598.




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No. 19-5768, United States v. Yerkes


       In Tennessee, “[a]ggravated burglary is burglary of a habitation.” Tenn. Code Ann. § 39-

14-403(a). “Burglary” means, among other things, “[e]nter[ing] a building . . . (or any portion

thereof) not open to the public, with intent to commit a felony, theft or assault.” Tenn. Code Ann.

§ 39-14-402(a)(1); see also Tenn. Code Ann. § 39-14-401(1) (defining “habitation”). At the time

of Yerkes’ Georgia burglary convictions, the statute defined “burglary” thus:

       A person commits the offense of burglary when, without authority and with the
       intent to commit a felony or theft therein, he enters or remains within the dwelling
       house of another or any building, vehicle, railroad car, watercraft, or other such
       structure designed for use as the dwelling of another or enters or remains within
       any other building, railroad car, aircraft, or any room or any part thereof.

Ga. Code Ann. § 16-7-1(a) (1980).

                                                A.

       Yerkes argues that his previous burglary convictions in Tennessee and Georgia state court

do not qualify as generic burglary offenses because the “entry” elements in those state statutes are

overbroad. In United States v. Brown, the defendant had previously been convicted of aggravated

burglary under Tennessee Code § 39-14-403 and raised the same nuanced argument Yerkes makes

here. 957 F.3d 679, 683 (6th Cir. 2020). We summarized that argument as follows:

               Brown’s argument hinges on a subtle common-law distinction. The
       common law defined burglary narrowly and required more elements than most
       modern burglary statutes: “At common law, burglary was confined to unlawful
       breaking and entering a dwelling at night with the intent to commit a
       felony.” Quarles v. United States, 139 S. Ct. 1872, 1877 (2019). The common law
       nevertheless defined the “entry” element of this narrow crime broadly: “As for the
       entry, any the least degree of it, with any part of the body, or with an instrument
       held in the hand is sufficient.” 4 William Blackstone, Commentaries on the Law of
       England 227 (1770).

                Despite the breadth of a common-law “entry,” some authorities eventually
       distinguished the entry of a body part (a foot or finger) from the entry of
       an instrument (a hook or firearm). “[I]f any part of the body be within the house,
       hand or foot; this at common law [was] sufficient[.]” 2 Edward H. East, Pleas of
       the Crown 490 (1806). A person thus “entered” a home merely by reaching an arm
       into it, whether that reach was designed to steal money or unlock a door. See Rollin

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No. 19-5768, United States v. Yerkes


        M. Perkins, Criminal Law 155–56 (1957); see also Rex v. Perkes, 171 Eng. Rep.
        1204, 1204 (1824). If only an instrument entered a home, by contrast, whether that
        entry sufficed depended on the reason for the entry. If a person used the instrument
        to commit the intended felony (for example, the person stuck a hook into the home
        to grab jewelry or a rifle into it to commit a robbery), both Edward Coke and
        William Blackstone treated the entry of that instrument alone as a burglary.
        Blackstone, supra, at 227; 3 Edward Coke, Institutes of the Laws of England 64
        (1648). But later cases held that if a person used an instrument merely to undertake
        the “breaking” and did not also use it to commit the additional felony (for example,
        the person used a drill bit only to drill through a door), the entry of that instrument
        alone did not suffice. See Rex v. Hughes, 168 Eng. Rep. 305, 305 (1785); 1 William
        Hawkins, Pleas of the Crown 162 (6th ed. 1788).

                Brown asks us to incorporate this “entry-by-instrument” distinction into the
        Armed Career Criminal Act’s generic definition of burglary, which covers the
        unlawful “entry into, or remaining in, a building or structure, with intent to commit
        a crime.” Taylor, 495 U.S. at 599 (emphasis added). He adds that Tennessee law
        defines “enter” to include not just the “[i]ntrusion of any part of the body” but also
        the “[i]ntrusion of any object in physical contact with the body or any object
        controlled by remote control, electronic or otherwise.” Tenn. Code Ann. § 39-14-
        402(b). Brown thus thinks that Tennessee law adopts a broader view of “entry”
        than the common-law view because it reaches any object—even one used only to
        gain access to a home. (No state decision, as far as we are aware, has answered this
        question about § 39-14-402(b)’s scope, and caselaw from before that provision's
        enactment did not clearly answer the question either. See State v. Crow, 517
        S.W.2d 753, 753–55 (Tenn. 1974).) Since Brown’s view of this state definition
        would cover more than his generic definition of “entry,” he concludes that
        Tennessee's definition of “enter” disqualifies all Tennessee burglary convictions
        from the Armed Career Criminal Act’s reach.

Id. (alterations in original) (parallel citations omitted).

        Brown thoroughly analyzed the merits of this argument, see id. at 684–89, and concluded

that the Supreme Court would not “adopt Brown’s view of generic ‘entry,’” id. at 684. For starters,

“we know that Congress did not view the entry element as a demanding one” because even at

common law, little was required to prove an entry: “Sticking a hand or finger through a window

sufficed, as did drilling a hole into the walls of a granary to cause the grain to fall out.” Id. at 685

(citations and internal quotation marks omitted). And the Supreme Court has “refused to read the

[ACCA] as limited to the common-law rules.” Id. As mentioned above, the contemporary


                                                   -4-
No. 19-5768, United States v. Yerkes


understanding of burglary is quite different, and the “arcane distinctions embedded in the common-

law definition have little relevance to modern law enforcement concerns.” Taylor, 495 U.S. at

593.

       The court characterized the entry-by-instrument issue as “perhaps the prototypical ‘arcane

distinction’ that Taylor would disavow.” Brown, 957 F.3d at 685 (quoting Taylor, 495 U.S. at

593). Congress’s chief concern in passing the ACCA was the risk of a violent encounter inherent

in certain crimes—for burglary, “between the offender and an occupant, caretaker, or some other

person who comes to investigate.” Taylor, 495 U.S. at 588. And the entry-by-instrument

distinction has “no relevance” to that purpose. See Brown, 957 F.3d at 685 (“Which burglar creates

the greater risk of a violent encounter with a startled homeowner? The one who reaches a finger

between a window and an inner shutter before fleeing (which would qualify as an entry under

Brown’s common-law rule), or the one who violently chops at a door with an axe that intrudes into

the home (which would not qualify under his rule)?” (citation omitted)).

       The court also examined the criminal codes of the states at the time of the ACCA’s

enactment, noting that it appears “that the majority of jurisdictions that had examined this question

had retained the narrower common-law rule and limited an entry by instrument to the situation

where the instrument is used to remove property from the premises or injure or threaten an

occupant.” Id. at 688 (citation and internal quotation marks omitted). But this fact was not

dispositive, the court stated, because Supreme Court precedent tells us that “if several state

burglary statutes had modestly departed from a common-law rule of burglary when Congress

passed the Armed Career Criminal Act, courts should interpret the Act’s generic definition of

burglary to cover those state statutes.” Id. at 689. Every state statute need not be identical to

qualify as generic burglary; states are instead entitled to some “breathing space.” Id. at 687.


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No. 19-5768, United States v. Yerkes


Because the departure at issue was slight and “did not completely redefine the crime of ‘burglary,’”

the court found that the entry-by-instrument distinction did not make the Tennessee statute broader

than generic burglary. Id. at 688.

                                                B.

       Yerkes argues that we are not obligated to follow Brown here because its discussion of the

entry-by-instrument distinction is nonbinding dicta. That is, the court in Brown recognized that a

prior case, Brumbach v. United States, 929 F.3d 791, 795 (6th Cir. 2019), rejected the entry-by-

instrument argument because “a panel of this court cannot overrule [United States v.] Nance.”

Nance held that “Tennessee aggravated burglary represents a generic burglary capable of

constituting a violent felony for ACCA purposes.”1          481 F.3d 882, 888 (6th Cir. 2007).

Recognizing the authority of Nance and Brumbach, the court in Brown stated that “Brown should

direct his argument to our en banc court or the Supreme Court.” 957 F.3d at 683–84. Even so,

the court thought “Brown’s argument weighty enough to warrant a response from this court on the

merits too.” Id. at 684.

       Yerkes also points out that he has only two prior convictions for Tennessee aggravated

burglary, and Brown, Brumbach, and Nance do not discuss the statute of his Georgia convictions.2



       1
         Nance’s holding was, for a time, overruled by this court’s en banc decision in United
States v. Stitt, 860 F.3d 854, 861 (6th Cir. 2017) (en banc). After the Supreme Court granted
certiorari and reversed, see United States v. Stitt, 139 S. Ct. 399, 408 (2018), we recognized that
“Nance’s holding . . . is once again the law of this circuit,” Brumbach, 929 F.3d at 794.
       2
        We addressed the statute of Yerkes’ Georgia burglary convictions in Richardson v. United
States, 890 F.3d 616 (6th Cir. 2018), cert. denied, 139 S. Ct. 349 (2018). There, the court
determined that the statute is divisible and that the elements of the defendant’s convictions—
“(1) an unlawful entry (2) into a dwelling house or building (3) with intent to commit a crime
therein”— “substantially conform to the generic definition of burglary announced by the Supreme
Court.” Id. at 629. As discussed below, the Shepard documents here similarly show that in all
five Georgia burglary counts, Yerkes pleaded guilty to burgling either a dwelling house or a
building.
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No. 19-5768, United States v. Yerkes


But even if we are not bound by it, we find Brown’s discussion—and rejection on the merits—of

the entry-by-instrument argument persuasive. Yerkes offers no reason for us to treat the Georgia

statute differently from the Tennessee statute in this respect, and upon examining the two, we find

none. Accordingly, we reject his argument that the statutes are overbroad based on their “entry”

elements.

                                                II.

       Yerkes offers another reason why his prior burglary convictions should not count as ACCA

predicates. He claims that the government failed to prove that his burglary offenses were

“committed on occasions different from one another.” See 18 U.S.C. § 924(e)(1).

       [T]wo offenses are committed on different occasions under the Act if: (1) it is
       possible to discern the point at which the first offense is completed, and the
       subsequent point at which the second offense begins; (2) it would have been
       possible for the offender to cease his criminal conduct after the first offense, and
       withdraw without committing the second offense; or (3) the offenses are committed
       in different residences or business locations.

United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011) (citation and internal quotation marks

omitted).

       Shepard documents provide the following information. See Shepard v. United States, 544

U.S. 13 (2005). One indictment in the Catoosa County, Georgia Superior Court charged Yerkes

with four counts of burglary of a “dwelling house.” Each count listed a different address and

owner for the burgled dwelling house in question. The first count alleged a commission date of

August 22, 2008, while the other three listed a commission date of September 25, 2008. A separate

indictment charged Yerkes with burgling a “business premises” on July 14, 2008, and listed its

name and address. Two “final disposition” documents show that Yerkes pleaded guilty to all five

burglary counts. Two indictments in the Hamilton County, Tennessee Criminal Court charged

Yerkes with aggravated burglaries of two different “habitation[s],” each with a different owner.

                                                -7-
No. 19-5768, United States v. Yerkes


Each indictment listed a different commission date for the aggravated burglaries: July 7, 2008,

and July 14, 2008. Two criminal judgments show that Yerkes pleaded guilty to these two

aggravated burglary charges.

       Because each of the seven counts specified a “different residence[ ] or business

location[ ],” Paige, 634 F.3d at 873, the Shepard documents show that Yerkes committed the

burglary offenses (or at very least, three of them) on different occasions. But Yerkes contends that

“the Shepard-approved evidence does not establish that he necessarily admitted that he committed

the burglaries on occasions different from one another.” (Emphasis added.) That is, aside from

one “reference to one specific individual (including her address for purposes of restitution)[,]

nothing in the judgment identifies the date/location of any offense, nor does anything else in the

judgment indicate that Mr. Yerkes necessarily admitted the time or location of any burglary.”

Because “[t]he time or location of the crime, then, is merely a fact – not an element,” Yerkes argues

that relying on the above information from the indictments would violate his Sixth Amendment

rights. See United States v. King, 853 F.3d 267, 272 (6th Cir. 2017).

       United States v. Hennessee forecloses this argument. 932 F.3d 437, 444 (6th Cir. 2019),

cert. denied, 140 S. Ct. 896 (2020). “[A] district court may consider both elemental and non-

elemental facts contained in Shepard-approved documents to determine whether prior felonies

were committed on occasions different from one another for purposes of the ACCA.” Id. The

district court here properly did so, and correctly imposed an ACCA-enhanced sentence.

                                                III.

       For these reasons, we affirm the district court’s judgment.




                                                -8-
No. 19-5768, United States v. Yerkes


         KAREN NELSON MOORE, Circuit Judge, dissenting. The majority opinion departs

from well-established principles regarding the application of the categorial approach to burglary

convictions in Armed Career Criminal Act (“ACCA”) cases as set forth by the Supreme Court.

The majority applies the entry-issue analysis from United States v. Brown, 957 F.3d 679 (6th Cir.

2020), to reject Yerkes’s arguments. But the Brown analysis is not binding because it is dicta, nor

is it persuasive due to its significant errors. Proper application of the categorical approach from

Taylor v. United States, 495 U.S. 575 (1990), demonstrates that Yerkes’s Georgia burglary

convictions are not categorical matches for generic burglary because Georgia’s entry element of

burglary is broader than the entry element of generic burglary.

         We review de novo “[w]hether a defendant is a career offender.” United States v. Cooper,

739 F.3d 873, 877 (6th Cir. 2014). We apply the categorical approach to determine whether a

defendant’s prior conviction for burglary is an ACCA predicate offense. Greer v. United States,

938 F.3d 766, 770–71 (6th Cir. 2019).1 Under the categorical approach, we “compare the elements

of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’

crime.” Id. at 771 (quoting Descamps v. United States, 570 U.S. 254, 257 (2013)). If the elements

of the state criminal statute “are broader than those of generic burglary,” a prior state conviction



         1
            We classify a defendant as an armed career criminal if he is convicted under 18 U.S.C. § 922(g)(1) for
possessing a firearm as a convicted felon and if he “has three previous convictions . . . for a violent felony or a serious
drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). A “violent felony”
is
         any crime punishable by imprisonment for a term exceeding one year . . . that—
         (i) has as an element the use, attempted use, or threatened use of physical force against the person
               of another; or
         (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
               presents a serious potential risk of physical injury to another.
§ 924(e)(2)(B). “We refer to § 924(e)(2)(B)(i) as the ‘use of force clause,” the list of offenses in § 924(e)(2)(B)(ii) as
the “enumerated offenses” clause, and the remaining “portion of § 924(e)(2)(B)(ii) . . . as the ‘residual clause.’”
United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014). Here, we consider “burglary” under the enumerated
offense clause. The residual clause was ruled unconstitutional in Johnson v. United States, 135 S. Ct. 2551, 2563
(2015).

                                                           -9-
No. 19-5768, United States v. Yerkes


under that statute does not qualify as generic burglary under the ACCA. United States v. Stitt,

139 S. Ct. 399, 405 (2018) (quoting Mathis v. United States, 136 S. Ct. 2243, 2257 (2016)).

       Yerkes contends that entry for Georgia burglary is broader than generic entry. Specifically,

he argues that the generic definition of “entry” with an instrument is when an instrument crosses

the threshold and the instrument is used or intended to be used to commit a further felony inside

(instrument-for-crime approach). Appellant Br. at 8; Reply Br. at 2 & n.1. Georgia penalizes as

an entry when an instrument simply crosses the threshold of the structure (any-instrument

approach). Appellant Br. at 8; Reply Br. at 2 & n.2. Under the generic definition of entry, Yerkes

argues, Georgia penalizes mere attempted entries, and therefore criminalizes attempted burglaries,

which is broader than generic burglary. Appellant Br. at 8. Thus, it is necessary to determine

(1) the definition of generic entry and (2) whether Georgia burglary is broader than generic

burglary based on the entry element.

        I. Generic entry is defined as the majority, instrument-for-crime approach

       Taylor did not define the entry element of generic burglary, but it did give federal courts

the method for discerning the generic definition of entry. See Taylor, 495 U.S. at 598. The

Supreme Court determined that “Congress meant by ‘burglary’ the generic sense in which the term

is now used in the criminal codes of most States.” Id. (emphasis added); see also id. at 589

(“Congress, at least at that time [in 1986] had in mind a modern ‘generic’ view of burglary, roughly

corresponding to the definitions of burglary in a majority of the States’ criminal codes.” (emphasis

added)); Stitt, 139 S. Ct. at 406. Thus, the question is not what the understanding of burglary was

at common law, “but rather [Congress’s] understanding at the time the ACCA was passed.” Greer,

938 F.3d at 771. It is well established that in this circuit, we find the generic definition “by

surveying how the crime is described across jurisdictions, as well as consulting sources such as


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No. 19-5768, United States v. Yerkes


the Model Penal Code.” Cooper, 739 F.3d at 879 (quoting United States v. Rede-Mendez, 680

F.3d 552, 556 (6th Cir. 2012)); see also Keeley v. Whitaker, 910 F.3d 878, 882 (6th Cir. 2018);

Greer, 938 F.3d at 771; United States v. Yates, 866 F.3d 723, 733 (6th Cir. 2017). In its two most

recent ACCA-burglary cases, the Supreme Court followed Taylor, adopting the majority state view

as the generic definition of certain aspects of burglary. See Quarles v. United States, 139 U.S.

1872, 1878 (2019) (intent for remaining-in burglary); Stitt, 139 S. Ct. at 406 (locational element).

        In 1986, the majority rule among the states was the instrument-for-crime approach;

nineteen states had adopted the instrument-for-crime approach and eight had adopted the any-

instrument approach. See Nev. Rev. Stat. § 193.0145 (1985); Wash. Rev. Code § 9A.52.010(2)

(1985); Walker v. State, 63 Ala. 49, 51–52 (1879); Sears v. State, 713 P.2d 1218, 1220 (Alaska Ct.

App. 1986); Thompson v. State, 477 S.W.2d 469, 471–72 (Ark. 1972); Foster v. State, 220 So.2d

406, 407 (Fla. Dist. Ct. App. 1969); People v. Davis, 279 N.E.2d 179, 181 (Ill. App. Ct. 1972);

Mattox v. State, 101 N.E. 1009, 1009 (Ind. 1913); State v. Ervin, 573 P.2d 600, 601 (Kan. 1977)2;

Stamps v. Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980); State v. Liberty, 280 A.2d 805, 808

(Me. 1971); Commonwealth v. Burke, 467 N.E.2d 846, 849 (Mass. 1984); State v. Hodges, 575

S.W.2d 769, 772 (Mo. Ct. App. 1978); State v. O’Leary, 107 A.2d 13, 15 (N.J. Super. Ct. App.

Div. 1954); State v. Tragni, 449 N.Y.S.2d 923, 928 (N.Y. Sup. Ct. 1982); State v. Sneed,

247 S.E.2d 658, 659 (N.C. Ct. App. 1978); State v. Crawford, 80 N.W. 193, 194 (N.D. 1899);

State v. Chappell, 193 S.E. 924, 924–25 (S.C. 1937); Mirich v. State, 593 P.2d 590, 593 n.4 (Wyo.




        2
          The government argues that Kansas should be counted along with the states following the any-instrument
approach, citing State v. Martin, 658 P.2d 1024 (Kan. 1983), in support. Appellee Br. at 19. Martin addresses the
Kansas state crime of eavesdropping, however. 658 P.2d at 1026.

                                                      -11-
No. 19-5768, United States v. Yerkes


1979) (all applying the instrument-for-crime approach).3 But see Ariz. Rev. Stat. Ann. § 13-

1501(2) (1978); 11 Del. Code Ann. § 829(b) (1972); Tex. Code Ann. § 30.02(b)(2) (1973); Utah

Code Ann. § 76-6-201(4)(b) (1973); People v. Osegueda, 210 Cal. Rptr. 182, 185–87 (Cal. App.

Dep’t Super. Ct. 1984); Mullinnix v. State, 338 S.E.2d 752, 753 (Ga. Ct. App. 1985); State v.

Tixier, 551 P.2d 987, 988–89 (N.M. Ct. App. 1976); State v. Crow, 517 S.W.2d 751, 754–55 (Tenn.

1974) (all applying the any-instrument approach). Contemporary commentators recognized that

the instrument-for-crime approach was the majority rule, including Professors LaFave, Scott,

Perkins, and Boyce. See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law

§ 8.13(b) (1986); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 254–55 (3d ed. 1982) (“But

in any event the rule became firmly established that the insertion of a tool or instrument does not

constitute an entry, within the law of burglary, if it is used merely to effect a breaking.”). Tellingly,

neither the government nor the majority disputes that the majority rule in 1986 was the instrument-

for-crime approach. See Appellee Br. at 18–19; Majority Op. at 5. The instrument-for-crime

approach thus defines generic entry.

          The majority follows the analysis in Brown, which concluded that the definition of generic

entry is the minority, any-instrument approach. Majority Op. at 3–7; see also Brown, 957 F.3d at

683–89. This analysis is not binding, however, because Brown, a Tennessee-aggravated-burglary

case, held that Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S. Ct.

974 (2020), foreclosed the defendant’s entry argument. Brown, 957 F.3d at 683–84. In any event,

the majority’s reiteration of the Brown analysis is unpersuasive because it makes four significant

errors.



          The government characterizes some of these states as merely having “language in their jurisprudence
          3

suggesting that they endorsed” the instrument-for-crime approach, Appellee Br. at 21 n.7, but this is an
understatement. Each state cited has set forth the instrument-for-crime approach as its definition of entry.

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No. 19-5768, United States v. Yerkes


       First, the majority bucks binding Supreme Court precedent, Taylor, by adopting a common-

law approach to defining the contours of generic burglary. Majority Op. at 3–7. It is true that

Congress “had in mind at least the ‘classic’ common-law definition when [it] considered the

inclusion of burglary as a predicate offense.” Taylor, 495 U.S at 593. But the Court has been

explicit: “[W]e made clear in Taylor that Congress intended the definition of ‘burglary’ to reflect

‘the generic sense in which the term [was] used in the criminal codes of most States’ at the time

the [ACCA] was passed.” Stitt, 139 S. Ct. at 406 (second alteration in original) (quoting Taylor,

495 U.S. at 598). Crucially, Taylor expressly declined to adopt a common-law-only focus. Taylor,

495 U.S. at 593–96. The majority and Brown reject the clear dictates of Taylor by failing to define

generic entry as the majority state rule in 1986.

       Second, even following a common-law-only focus, the majority and Brown erroneously

define generic entry. The common-law rule is the same as the modern, generic rule—the

instrument-for-crime approach. Wayne R. LaFave, 3 Substantive Criminal Law § 21.1(b), 210

n.36 (2d ed. 2003) (“Today, the majority view is ‘that an entry can occur if an instrument, “being

used to commit the felony intended,” passes the line of the threshold, regardless of whether the

instrument was used in the breaking,’ while the minority position is ‘that an entry can occur if any

instrument, whether or not intended for use to commit a felony, crosses the threshold.’” (citation

omitted)). As Professor LaFave explained, though common-law commentators such as William

Blackstone, Edward Coke, and Matthew Hale did not expressly distinguish between entry with an

instrument with and without the intent to use the instrument to commit a crime within a structure,

“it might be implied from their examples.” Id. Upon further examination of these examples, it is

clear that Blackstone, Coke, and Hale viewed entry by instrument in a manner consistent with the

instrument-for-crime approach. See 4 William Blackstone, Commentaries on the Law of England


                                                -13-
No. 19-5768, United States v. Yerkes


227 (1769) (“As for the entry, any the least degree of it, with any part of the body, or with an

instrument held in the hand, is sufficient: as, to step over the threshold, to put a hand or a hook in

at the window to draw out goods, or a pistol to demand one’s money, are all of them burglarious

entries.”) (emphasis added); 1 Matthew Hale, The History of the Pleas of the Crown 555 (1736)

(reiterating the hook and pistol examples); 3 Edward Coke, Institutes of the Laws of England 64

(1644) (same). The same is true of other common-law sources; though the two approaches are not

expressly distinguished, the examples relied upon are consistent with the instrument-for-crime

approach. See Rex v. Hughes, 168 Eng. Rep. 305, 305 (1785); 2 Edward H. East, Pleas of the

Crown 490 (1806); 1 William Hawkins, Pleas of the Crown 162 (6th ed. 1788). The government

omits this crucial context, Appellee Br. 17, as did the panel in Brown, 957 F.3d at 684. Upon

closer scrutiny, not one common-law authority from the government’s brief can be said to support

its contention that the common-law rule was the any-instrument approach. See Appellee Br. at

17–19. And Brown does not cite a single common-law example following the any-instrument

approach. The panel in Brown merely inferred a broad approach to entry at common law by citing

cases addressing physical, bodily entries, 957 F.3d at 685, and cases that followed the instrument-

for-crime approach, id. (citing Walker, 63 Ala. at 51–52; Crawford, 80 N.W. at 194–95).4 Given

the authorities discussed above, the majority’s conclusion that the traditional rule was the any-

instrument approach is confounding.




         4
          The Brown panel relies on two state cases adopting the instrument-for-crime approach. In Walker, the
Supreme Court of Alabama expressly stated that “the intrusion of the instrument is not, of itself, an entry.” 63 Ala. at
52. Rather, the instrument must be “necessary to the consummation of the criminal intent.” Id. The Supreme Court
of North Dakota cited the same rule in Crawford and concluded that an entry had occurred because the defendant had
used a tool to bore a hole into the granary, knowing that the tool “set the law of gravitation in motion,” i.e. caused the
grain to spill through the hole. 80 N.W. at 194 (“When the auger was withdrawn from the aperture made with it, the
corn ran into the sack he used in its asportation. There was a breaking and entry . . . .”).

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       The third error—and the crux of the majority’s argument—is the conclusion that the

difference between the instrument-for-crime and any-instrument approaches is insignificant. The

difference between the instrument-for-crime and the any-instrument approaches is not an “arcane

distinction[ ]” from common law that does not fit within the generic definition of burglary, Taylor,

495 U.S. at 593; Majority Op. at 5, nor is Yerkes “seizing on modest state-law deviations from the

generic definition of burglary,” Quarles, 139 S. Ct. at 1880; see Majority Op. at 5–6. The

instrument-for-crime approach criminalizes only entries that were committed with an instrument

intended to be used to commit a crime inside the structure. When an instrument crosses the

threshold without this intent, it constitutes an attempted entry. Therefore, the any-instrument

approach criminalizes attempted burglaries. Attempted burglary is inconsistent with the generic

definition of burglary. In James v. United States, the Court expressly concluded that attempted

burglary does not “qualify as one of the specific crimes enumerated in clause (ii) . . . . because it

does not meet the definition of burglary under ACCA that this Court set forth in Taylor.” 550 U.S.

192, 197 (2007), overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015).

Neither the majority nor Brown addresses James. The difference between these two approaches

is not a distinction without a difference.

       The final error made by the majority is its conclusion that the instrument-for-crime

approach does not satisfy “Congress’s chief concern in passing the ACCA,” “the risk of a violent

encounter” inherent in burglaries. Majority Op. at 5. Relatedly, the government contends that

defining generic entry under the instrument-for-crime approach will mean that Congress intended

to enact a “self-defeating statute” because if the instrument-for-crime approach were the definition

of generic entry, then burglary convictions in states that today have not spoken on the issue or that




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have adopted the any-instrument approach would no longer serve as ACCA predicates. Appellee

Br. at 25 (quoting Quarles, 139 S. Ct. at 1879). These arguments are misguided.

       Adopting the instrument-for-crime approach to generic entry will not undermine

Congress’s purpose in passing the ACCA. The majority is correct insofar as attempted burglary

implicates congressional intent in including dangerous crimes as predicates in the ACCA. The

Court concluded in James that Congress believed attempted burglary presented a high risk of

violence and thus intended the ACCA to include attempted burglary convictions. See James, 550

U.S. at 203–07. But these concerns did not motivate Congress to include attempted burglary in

the enumerated offenses clause—instead, they motivated Congress to cover attempted burglary

through the residual clause. See id. at 197, 209. The Court later held that Congress exceeded

constitutional restraints when it did so, however. Johnson, 135 S. Ct. at 2563 (“We hold that

imposing an increased sentence under the residual clause of the Armed Career Criminal Act

violates the Constitution’s guarantee of due process.”). Thus, properly applying Taylor to discern

the contours of the entry element of generic burglary does not undermine congressional intent as

to the inclusion of burglary in the enumerated offenses clause.

       As for the government, it aims at the wrong targets. We look to the majority rule of the

states when the ACCA was enacted. Stitt, 139 S. Ct. at 406. Therefore, the government’s focus

on the minority of states’ approaches today is misdirected. Additionally, there is no basis for the

government’s assertion that determining that generic entry is defined by the instrument-for-crime

approach will necessarily impact the jurisdictions that have yet to address the issue or that this

concern should drive our analysis. In Quarles, only five states had addressed the issue in 1986,

and the fact that the vast majority of the states presently had not spoken on the issue did not stop

the Court from adopting the majority approach of the few states. See Quarles, 139 S. Ct. at 1878


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& n.1. The government provides no authority for its implied proposition that a state that is silent

on the entry rule will be considered to have adopted the minority, any-instrument approach. The

government cites Stokeling v. United States, 139 S. Ct. 544, 552 (2019), and United States v.

Castleman, 572 U.S. 157, 167 (2014), for the general proposition that Congress would not enact a

provision that excludes many state statutes. In Stokeling, “it [was] clear that many States’ robbery

statutes would not qualify as ACCA predicates under Stokeling’s reading” because his reading

impacted other robbery offenses. 139 S. Ct. 544, 552 (2019). The government outlines no such

ripple effect here. And both Stokeling and Castleman were non-burglary cases, meaning neither

had to contend with Taylor. See Stokeling, 139 S. Ct. at 551–52 (robbery); Castleman, 572 U.S.

at 163 (domestic violence). Given the clarity of Taylor’s exposition of congressional intent, it is

difficult to see why declining to follow Taylor would better follow congressional intent under these

circumstances.

        In sum, Taylor is clear, binding precedent that compels one conclusion—the majority,

instrument-for-crime approach provides the definition of the entry element of generic burglary.

          II. Georgia burglary criminalizes conduct broader than generic burglary

        Once the generic definition is determined, we compare the elements of the state offense to

those of the generic offense, focusing on “[t]he minimum culpable conduct criminalized by the

state statute . . . to which there is a ‘realistic probability, not a theoretical possibility, that the state

would apply the statute.” Yates, 866 F.3d at 728 (quoting Moncrieffe v. Holder, 569 U.S. 184, 191

(2013)). Though the Georgia statute does not define entry, see Ga. Code Ann. § 16-7-1(a) (1980),

Georgia courts have interpreted “entry” to mean “‘break[ing] the plane’ of the structure.”

Mullinnix, 338 S.E.2d at 753 (quotations in original); see also Meadows v. State, 590 S.E.2d 173,

177–78 (Ga. Ct. App. 2003). Georgia applies the any-instrument approach, and therefore the


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minimum culpable conduct under the Georgia burglary statute is attempted burglary based on an

attempted entry.

          There is a realistic probability that Georgia would apply its burglary statute to attempted

entries. The most common method of demonstrating a realistic probability is for a defendant to

“point to his own case or other cases in which the state courts in fact did apply the statute in the

special (nongeneric) manner for which he argues.” Gonzales v. Duenas-Alvarez, 549 U.S. 183,

193 (2007). But that is not the only method. For example, we have relied on the plain text of a

statute to hold that there is a realistic probability that the state would apply its statute to the

minimum culpable conduct in question. See United States v. Camp, 903 F.3d 594, 602 (6th Cir.

2018), cert. denied, 139 S. Ct. 845 (2019); see also United States v. Havis, 907 F.3d 439, 446 (6th

Cir. 2018) (explaining that “[i]f the text of Tennessee’s attempt statute was plainly overbroad, that

would be a different matter” regarding whether a defendant must supply a case to demonstrate a

realistic probability), rev’d on other grounds, 927 F.3d 382 (6th Cir. 2019) (en banc). Like plain

statutory text, pattern jury instructions may also be so clear as to demonstrate a realistic probability,

not a theoretical possibility, that a state statute is applied to the least of the acts criminalized. See

United States v. Daniels, 915 F.3d 148, 163 (3d Cir. 2019), cert. denied, 140 S. Ct. 1264 (2020);

United States v. Glass, 904 F.3d 319, 323 (3d Cir. 2018), cert. denied, 139 S. Ct. 840 (2019);

United States v. McCranie, 889 F.3d 677, 680 (10th Cir. 2018), cert. denied, 139 S. Ct. 1260

(2019).

          Georgia’s pattern jury instructions show a realistic probability that Georgia criminalizes

any-instrument entries.      Georgia Suggested Pattern Jury Instruction 2.62.31 provides, “[t]o

constitute ‘entry,’ the evidence need only show a [‘]breaking of the plane’ of the structure.” 2 Ga.

Suggested Pattern Jury Instr., Crim. 2.62.31 (4th ed. 2020). The instruction’s meaning is plain,


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and therefore there is a realistic probability Georgia applies its burglary statute to attempted entries.

Accordingly, Georgia’s entry element is broader than the generic entry element as defined by the

instrument-for-crime approach, and Georgia burglary is not a categorical match for generic

burglary.

                                           III. Conclusion

        For the reasons set forth above, Yerkes’s Georgia burglary convictions cannot serve as

ACCA predicates. Once Yerkes’s five Georgia convictions are eliminated from his ACCA-

predicate tally, he is left with only his two Tennessee convictions. This is insufficient for Yerkes

to be classified as an armed career criminal for sentencing under the ACCA. Yerkes’s sentence

should be vacated, and his case remanded for resentencing. For these reasons, I dissent.




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