                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2009

USA v. Lewis
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4058




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                        No. 07-4058
                                       ____________

                           UNITED STATES OF AMERICA,
                                                Appellant
                                       v.

                               BARRY WAYNE LEWIS

                                       ____________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 05-cr-00024)
                    District Judge: Honorable Sean J. McLaughlin
                                    ____________

                            Argued September 29, 2008
           Before: FISHER, CHAGARES and HARDIMAN, Circuit Judges.

                                    (Filed:May 20, 2009)

Robert L. Eberhardt [Argued]
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
       Attorney for Appellant


Thomas W. Patton [Argued]
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501-0000
       Attorney for Appellee
                                      ____________

                                OPINION OF THE COURT
                                     ____________

HARDIMAN, Circuit Judge.

       In this appeal we consider whether a burglary conviction under an Ohio statute in

effect in 1991 constitutes a violent felony under the Armed Career Criminal Act (ACCA).

                                             I.

       Barry Wayne Lewis, a convicted felon, was indicted under 18 U.S.C. §§ 922(g)(1)

and 924(e), after he was found carrying a rifle in Warren, Pennsylvania. At the time of

his arrest, Lewis had three prior felony convictions, including assault with a deadly

weapon in California, and abduction and burglary in Ohio. After Lewis pleaded guilty to

the firearm charge, the parties disagreed regarding the appropriate sentence. The

Government sought a mandatory minimum of 15 years imprisonment, arguing that

Lewis’s Ohio burglary conviction was his third “violent felony” under ACCA, 18 U.S.C.

§ 924(e)(1). Lewis argued otherwise and the District Court agreed with him, holding that

the Ohio burglary conviction was not a qualifying offense under ACCA. The

Government filed this timely appeal and we have jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(b).

                                             II.




                                             2
       At issue is ACCA’s “residual clause,” which has been the subject of Supreme

Court review each of the past three years. See James v. United States, 550 U.S. 192

(2007); Begay v. United States, 128 S. Ct. 1581 (2008); Chambers v. United States, 129

S. Ct. 687 (2009). Pursuant to the residual clause, we must decide whether Lewis’s Ohio

burglary conviction “involves conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).1

                                              A.

       We analyze the Ohio statute using a categorical approach, see United States v.

Taylor, 495 U.S. 575, 602 (1990), which asks “whether the elements of the offense are of

the type that would justify its inclusion within the residual provision, without inquiring

into the specific conduct of this particular offender.” James, 550 U.S. at 202. In applying

the categorical approach, a sentencing court is “generally limited to examining the

statutory definition, charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” Shepard v. United States, 544 U.S. 13, 16 (2005). The categorical approach is

necessary to “avoid collateral trial[s] and [retroactive] judicial factfinding” relative to

predicate offenses that may have occurred years ago. United States v. Siegel, 477 F.3d


       1
        Although burglary is a specifically enumerated violent felony under ACCA
§ 924(e)(2)(B), the Government does not argue that Lewis’s offense falls under this
provision because the Ohio statute implicated here is broader than the “generic” definition
of burglary established by United States v. Taylor, 495 U.S. 575 (1990).


                                               3
87, 93-94 (3d Cir. 2007). Based on the sources permitted by Shepard, a court must

decide “whether the conduct encompassed by the elements of the offense, in the ordinary

case, presents a serious potential risk of injury to another.” James, 550 U.S. at 208

(emphasis added). State court decisions interpreting state law inform this decision. Id. at

202-06 (discussing Florida courts’ interpretations of a Florida statute).2

                                             B.

       This case presents a convoluted factual scenario that complicates our categorical

assessment. Lewis initially was charged with aggravated burglary under O HIO R EV. C ODE

A NN. § 2911.11 (1993) (Section 11), which stated in pertinent part:

       (A)    No person, by force, stealth, or deception, shall trespass in an occupied
              structure . . . or in a separately secured or separately occupied portion
              thereof, with purpose to commit therein any theft offense . . . or any felony,
              when any of the following apply:
              ...

              (3)    The occupied structure involved is the permanent or temporary
                     habitation of any person, in which at the time any person is present
                     or likely to be present.




       2
         In cases involving disjunctive statutes, such as the Ohio statute at issue here, we
have recharacterized Taylor’s categorical approach as a “modified” categorical approach,
which signals some degree of factual inquiry into the underlying crime. See Singh v.
Ashcroft, 383 F.3d 144, 148 (3d Cir. 2004). See also Joseph v. Attorney General, 465
F.3d 123, 127 (3d Cir. 2006); Garcia v. Attorney General, 462 F.3d 287, 291 (3d Cir.
2006) (both citing Singh). Singh was decided before Shepard, which rendered semantic
the distinction between “formal” and “modified” categorical approaches. Shepard
clarified the scope of documents available to courts in pursuing categorical inquiry in all
cases, and our modified approach is subsumed within Shepard’s holding.

                                              4
       Lewis did not plead guilty to the original indictment; instead, he pleaded guilty to

the lesser offense of burglary under O HIO R EV. C ODE A NN. § 2911.12 (1993) (Section

12), which stated in pertinent part:

       (A)    No person, by force, stealth, or deception, shall do any of the following:

               (1)     Trespass in an occupied structure or in a separately secured or
                       separately occupied portion thereof, with purpose to commit therein
                       any theft offense or any felony.

        Lewis’s guilty plea to burglary under Section 12(A)(1) was not made pursuant to

a superseding indictment; rather, the original indictment for aggravated burglary was

altered to reflect the plea deal. Consequently, the plea reflected all of the averments in

the original indictment, along with the amendment to the indictment, which substituted

burglary under Section 12 for aggravated burglary under Section 11. This created an

anomaly because the averments in the indictment sufficed for aggravated burglary, but

Lewis pleaded guilty only to burglary.

        Both Sections 11 and 12 rely on the definition of “occupied structure” found in

O HIO R EV. C ODE A NN. § 2901.01 (1993):

         (C) “Occupied structure” means any house, building, outbuilding, watercraft,
              aircraft, railroad, railroad car, truck, trailer, tent, or other structure, vehicle,
             or shelter, or any portion thereof, to which any of the following applies:

              (1)     It is maintained as a permanent or temporary dwelling, even though
                      it is temporarily unoccupied and whether or not any person is
                      actually present.

              (2)     At the time, it is occupied as the permanent or temporary habitation
                      of any person, whether or not any person is actually present.

                                                5
              (3)    At the time, it is specially adapted for the overnight accommodation
                     of any person, whether or not any person is actually present.

              (4)    At the time, any person is present or likely to be present in it.

“Occupied structure” is defined partly in terms of “dwellings” and “habitations,” a

distinction which is significant in our evaluation of the risk of injury posed by Lewis’s

offense. Under Ohio law, dwellings and habitations are residential in nature, and a

dwelling is a temporarily vacant habitation: “[a] structure which is dedicated and

intended for residential use, and which is not presently occupied as a person’s habitation,

but which has neither been permanently abandoned nor vacant for a prolonged period of

time, can be regarded as a structure ‘maintained’ as a dwelling.” State v. Davis, No.

90050, 2008 WL 2688088, at *8 (Ohio Ct. App. Jun. 5, 2008). Examples of dwellings

include: (1) a home “whose usual occupant is absent on prolonged vacation [or]

receiving long-term care in a nursing home”; (2) “a summer cottage”; and (3) “a

residential rental unit which is temporarily vacant.” State v. Jackson, No. CA2005-02-

033, 2006 WL 589378, at *5 (Ohio Ct. App. Mar. 13, 2006).

       Relying on Ohio caselaw interpreting the two burglary statutes, Lewis argues that

his conviction cannot be classified as a crime of violence because there was little chance

that another person would be present at the time of his burglary. The Government

counters by arguing that our categorical assessment of burglary must ignore the

aggravated burglary statute. The Government cites United States v. Lane, 909 F.2d 895



                                              6
(6th Cir. 1990), which held that Ohio burglary qualifies as a violent felony under the

residual clause.3 We find neither party’s reasoning entirely correct.

                                             C.

       To categorically assess the risk of physical injury posed by Lewis’s offense, we

must first determine how broadly to read the statute. See Chambers, 129 S. Ct. at 690

(“[The] categorical approach requires courts to choose the right category. And sometimes

the choice is not obvious.”). The parties agree that Lewis was convicted under subsection

(A)(1) of Section 12 and focus their arguments on whether the elements of that particular

subsection satisfy ACCA’s residual clause. We agree that subsection (A)(1) is our proper

focus because Lewis pleaded guilty to a second degree felony and subsection (A)(1) is the

only second degree felony contained in Section 12.

       In Chambers, the Supreme Court applied the categorical approach to a similarly

disjunctive statute involving “escape” under Illinois law. Although the charging

document identified the particular subsection under which Chambers was convicted, the

Supreme Court grouped together four subsections of the statute in its categorical

assessment, focusing on “the statutory phrases setting forth various kinds of failure to

report (or to return) [to prison],” which “describe[d] roughly similar forms of behavior

. . . [and] amount[ed] to variations on a single theme.” Chambers, 129 S. Ct. at 691. In

       3
         The Government places much weight on Lane, but the Ohio Supreme Court is the
final arbiter of Ohio law, and we agree with Lewis that Lane misinterpreted the statute’s
requirements.


                                             7
this case, however, it would be inappropriate to group together multiple subsections under

Section 12, because subsections (A)(2) and (A)(3) do not involve degrees of risk

comparable to subsection (A)(1).4 Because the charging document makes clear that

Lewis was convicted under Section 12(A)(1), it is proper to focus exclusively on that

subsection. Therefore, we will categorically assess the “conduct encompassed by the

elements of [Section 12(A)(1)], in the ordinary case.” James, 550 U.S. at 208. The

dispositive question becomes whether trespass by force, stealth, or deception in an

occupied structure with purpose to commit a felony or theft ordinarily poses a serious

potential risk of physical injury to another.

                                                D.

       Having constrained our categorical inquiry to Section 12(A)(1), we next consider

the particular elements of the offense. Lewis argues that our categorical assessment of

Section 12(A)(1) must be limited to a certain type of “occupied structure.” The District

Court agreed, finding that Lewis’s conduct involved intrusion into a habitation as

opposed to a dwelling or other edifice that would qualify as an occupied structure under §

2909.01(C). This assumption is crucial to Lewis’s argument that the language of Ohio’s

two burglary statutes, along with Ohio precedent interpreting them, dictate that there was

little chance of anyone being present at the time of his offense. Because it was highly

       4
        Unlike subsection (A)(1), subsections (A)(2) and (A)(3) necessarily involve both
intrusion into a habitation and the likely presence of another person. Moreover, each
subsection is classified as a felony of a different degree.


                                                8
unlikely that anyone would be present, Lewis argues, the risk of physical injury arising

from his conduct was greatly diminished and his offense does not qualify under ACCA’s

residual clause.

       To determine whether Lewis’s burglary necessarily involved intrusion into a

habitation, we first consider the Addendum to the Presentence Investigation Report

(PSR), which states: “[s]ince no amended indictment is available, the only charging

documents available to the Court to determine if the defendant’s burglary offense

constitutes a predicate offense for ACCA purposes is the original indictment and the

February 12, 1991 journal entry” recording Lewis’s plea. PSR Addendum 4. That

journal entry refers to the original indictment, which charged Lewis with aggravated

burglary as follows:

        the defendant, by force, stealth, or deception, trespassed in an occupied structure .
        . . or in a separately secured or separately occupied portion thereof, with the
        purpose to commit therein a theft offense . . . or a felony, and the occupied
        structure involved is [a] permanent or temporary habitation . . . in which, at the
        time, any person was present or likely to be present.

Appellee’s Supp. App. 14.

       The journal entry also states that “the prosecution’s motion to amend indictment to

read ‘burglary’ is granted.” Id. at 15. The record demonstrates that the only change made

in the amended indictment was replacing aggravated burglary (Section 11) with burglary

(Section 12). Finally, the journal entry states that “defendant retracts his/her former plea




                                              9
of not guilty . . . and for plea to said indictment says he/she is guilty of burglary, RC

2911.12, as charged in the amended indictment.” Id. (emphasis added).

         Though not a charging document itself, we find that the journal entry is a

“comparable judicial record,” Shepard, 544 U.S. at 26, which serves as a proxy for the

amended indictment. See United States v. Bennett, 100 F.3d 1105, 1110 (3d Cir. 1996)

(holding that in the absence of “charging instruments, jury instructions, or certified

records of conviction” for prior offenses, “details of those convictions . . . provided by

defense counsel in a letter to [defendant’s] probation officer” were sufficient to “satisfy

[the court] that the trier of fact necessarily found all of the elements of” the offenses).

Accordingly, it was proper for the District Court to rely on the journal entry in assessing

the nature of Lewis’s conduct. Nevertheless, the anomalous facts of this case require that

we not take those documents at face value.

         If we were to take the journal entry and indictment at face value, Lewis would be

held accountable for both intrusion into a habitation and the actual or likely presence of

another person in the habitation. This would violate Ohio law, which provides that when

both habitation and physical presence are involved, the crime is aggravated burglary

under Section 11, not burglary under Section 12. State v. Wilson, 388 N.E.2d 745 (Ohio

1979).

         In Wilson, the Ohio Supreme Court explained that Section 11 required both

intrusion into a habitation and the likely presence of another person, while either fact



                                              10
alone was sufficient under Section 12(A)(1). To avoid the equal protection problem

inherent in punishing identical conduct differently under separate statutes, Wilson held

that a conviction under Section 12(A)(1) must involve only a habitation or the likely

presence of another, not both. Id. at 747-50 (reading § 2909.01 disjunctively).5 The court

also avoided a potential due process problem by explicitly rejecting a presumption that

intrusion into a habitation necessarily involves the likelihood of presence, stating that “a

structure can be one that was occupied as a permanent or temporary habitation without

being one . . . where at the time anyone is present or likely to be present.” Id. at 750.

Regardless of the persuasive force of this distinction, we are bound to follow Ohio law on

this point. See James, 550 U.S. at 202-06.

       The District Court noted that since Wilson, Ohio courts have interpreted “likely

presence” to be “virtually coterminous with the concept of ‘potential presence.’” App. 93.

See, e.g., State v. Lockhart, 685 N.E.2d 564 (Ohio Ct. App. 1996); Matter of Reed, No.

67238, 1994 WL 706154 (Ohio Ct. App. Dec. 15, 1994). In light of this extremely broad


       5
         We clarify that Wilson’s holding is legal, not factual. “The Equal Protection
Clause is not violated when, based upon prosecutorial discretion, a person may be
charged under more than one statute and thereby receive different penalties.” 388 N.E.2d
at 55. Neither equal protection nor Wilson prohibits a prosecutor from charging a
defendant under the lesser burglary statute simply because the prosecutor believes
intrusion into a habitation and likelihood of presence can both be established. Therefore,
a burglary offense which as a matter of fact involves both elements may be charged under
the lesser statute. Nevertheless, Wilson illustrates that the statutes at issue define
aggravated burglary as a more severe crime than burglary on the basis of a single
additional element, and that a defendant convicted only under the lesser offense cannot as
a matter of law be held responsible for both elements.

                                              11
interpretation of “likely presence” and the assumption that he intruded into a habitation,

Lewis argues that his crime posed a relatively minimal risk of injury because “a burglary

conviction [under Section 12(A)(1)] means that the state could not establish that anyone

was potentially present at the time of the burglary.” Appellee’s Br. 31.

       Lewis’s argument would hold water if the record made clear that his conduct

involved intrusion into a habitation, but it does not. As we have noted, the indictment

charges Lewis with trespass into an occupied structure that is a permanent or temporary

habitation in which one was present, or likely to be present. Because Lewis did not plead

guilty to aggravated burglary under Section 11, however, we cannot hold him liable for

both charges in the indictment. Rather, we will proceed to consider the other documents

permissible under Shepard, and “any explicit factual finding by the trial judge to which

the defendant assented.” Shepard, 544 U.S. at 16.

       At Lewis’s two sentencing hearings, the District Court presumed that Lewis broke

into a habitation. This assumption was apparently based on the PSR, which described the

facts of Lewis’s offense as follows:

       Upon arriving on the scene, the police found Allen Kvatt in the apartment which
       belonged to Edelbert Cross. A neighbor of Mr. Cross informed the police that Mr.
       Cross had been taken to the hospital a day previously for a leg and foot infection,
       and shortly thereafter, Mr. Kvatt, who was in the apartment at that time, and
       another male, later identified as [Lewis], had illegally entered the apartment and
       had been there ever since. Mr. Kvatt informed the police that he and [Lewis] had
       broken into the apartment the previous day

PSR at ¶ 34.



                                             12
       The foregoing averments are relevant to our categorical inquiry because we have

held that the PSR is a permissible Shepard document to the extent that the defendant

concedes facts stated therein. Siegel, 477 F.3d at 93-94. Thus, we consider the fact that

Lewis broke into an apartment while the occupant was hospitalized. But this begs the

question whether the circumstances of the occupant’s hospitalization were sufficient to

render the apartment a dwelling under Ohio law. Lewis now assents to the District

Court’s conclusion that the apartment was a habitation because it necessarily follows that

there was no likelihood of anyone being present under Wilson. But Wilson applies only to

habitations, and nothing in the PSR indicates whether the apartment Lewis burglarized

was a habitation or a dwelling. If Mr. Cross’s temporarily vacant apartment were a

dwelling, then Wilson would not preclude Lewis’s offense from involving a likelihood of

presence.

       Ohio precedent on the distinction between habitation and dwelling is sparse. We

have not found, and the parties do not cite, any cases defining precisely how long an

occupant must be gone to transform a habitation into a dwelling. Nor is it apparent

whether the distinction is based on the expected or actual length of the absence, or if Mr.

Cross’s hospitalization was the type of absence that qualifies. Given this ambiguity, the

Shepard documents are insufficient for us to draw a conclusion on this point. We would

have to dig well beneath the available documents and engage in judicial factfinding




                                            13
contrary to Shepard and Siegel, to determine whether the circumstances of Mr. Cross’s

hospitalization rendered the apartment a dwelling.

       In sum, Lewis’s amended indictment avers element A and element B for an

offense that by its terms encompasses only one element or the other. We must assume

that Lewis’s conduct involved either intrusion into a habitation or the likely presence of

another person (and not both), but the categorical approach requires that we make no

assumption about which it was at this point.

                                               E.

       Although we decline to narrow the scope of our inquiry strictly to violations of

Section 12(A)(1) involving habitations, the foregoing Shepard documents and Ohio

precedent do allow us to narrow the inquiry somewhat. On its face, Section 12(A)(1)

encompasses intrusions into any occupied structure. By definition, this includes: (1)

habitations, whether or not there is a likelihood of presence; (2) dwellings, whether or not

there is a likelihood of presence; (3) structures specially adapted for overnight

accommodation, whether or not there is a likelihood of presence; and (4) any other

structure, only if there is a likelihood of presence. § 2909.01(C). Excluding certain of

these instances from the scope of our inquiry may affect our categorical assessment,

because likelihood of presence bears on the risk of physical injury posed by the offense.

We find it proper to narrow the scope of our inquiry under Section 12(A)(1) in two

respects.



                                               14
       First, Wilson makes clear that an intrusion into a habitation must be aggravated

burglary if it involves the likelihood of presence. Therefore, Section 12(A)(1) only

encompasses intrusions into habitations that do not involve presence. The Government

objects that Wilson is irrelevant insofar as it relies on Section 11, and any consideration

thereof is an impermissible excursion beyond the categorical approach. This argument

misconstrues Taylor’s categorical mandate. Statutory provisions do not exist in a

vacuum, divorced from their overarching legislative schemes; they must be read as a

whole and in context. See FDA v. Brown & Williamson Tobacco Co., 529 U.S. 120, 132-

33 (2000); Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989). Accordingly, we

decline the Government’s invitation to analyze Section 12 as if Section 11 did not exist.

We also defer to Ohio precedent interpreting “likelihood of presence” just as the Supreme

Court deferred to Florida precedent interpreting the terms “curtilage” and “attempt” in

James. 550 U.S. at 203 (“But while the statutory language is broad, the Florida Supreme

Court has considerably narrowed its application in the context of attempted burglary,

requiring an ‘overt act directed toward entering or remaining in a structure or

conveyance.’”); id. at 213 (“The Florida Supreme Court has construed curtilage narrowly,

requiring ‘some form of an enclosure in order for the area surrounding a residence to be

considered part of the ‘curtilage’ as referred to in the burglary statute.’”).

       Second, the PSR makes clear that Lewis’s offense involved either a habitation or a

dwelling, so the categorical inquiry must exclude other structures. Therefore, our inquiry



                                              15
is limited to violations of Section 12(A)(1) involving: (1) habitations, only if there is no

likelihood of presence; and (2) dwellings, whether or not there is a likelihood of presence.

                                             III.

       Having defined the scope of our inquiry, we must assess the risk of physical injury

posed by the foregoing conduct in the “ordinary case.” The categorical approach requires

us to make a highly abstract, somewhat speculative determination in this regard. In

United States v. Chambers, 473 F.3d 724 (7th Cir. 2007), the Court of Appeals for the

Seventh Circuit was required to make this type of generalized assessment about the risk

of physical injury posed by walkaway escapes. The court noted that “it is an

embarrassment to the law when judges base decisions of consequence on conjectures, in

this case a conjecture as to the possible danger of physical injury posed by criminals who

fail to show up to begin serving their sentences or fail to return from furloughs or to

halfway houses.” Chambers, 473 F.3d at 726. When Chambers reached the Supreme

Court, some justices acknowledged these concerns. See Chambers, 129 S. Ct. at 694

(Alito, J., concurring) (“I write separately . . . to emphasize that only Congress can rescue

the federal courts from the mire into which ACCA’s draftsmanship and Taylor’s

‘categorical approach’ have pushed us.”). See also Begay, 128 S. Ct. at 1592 (Alito, J.,

dissenting) (noting that ACCA’s residual clause “calls out for legislative clarification”).

       Whatever the merits of the aforementioned observations, ACCA nevertheless

requires us to make such judgments given the limited tools at our disposal. In



                                              16
categorically assessing the risk of physical injury posed by Section 12(A)(1), our

judgments and assumptions are similar to those made by the Supreme Court in James:

       Indeed, the risk posed by an attempted burglary that can serve as the basis for an
       ACCA enhancement may be even greater than that posed by a typical completed
       burglary. All burglaries begin as attempted burglaries. But ACCA only concerns
       that subset of attempted burglaries where the offender has been apprehended,
       prosecuted, and convicted. This will typically occur when the attempt is thwarted
       by some outside intervenor – be it a property owner or law enforcement officer.
       Many completed burglaries do not involve such confrontations. But attempted
       burglaries often do; indeed, it is often just such outside intervention that prevents
       the attempt from ripening into completion.

550 U.S. at 204. Cf. Chambers, 129 S. Ct. at 692 (in rejecting government’s argument

that walkaway escape should be considered a crime of violence, reasoning that “an

individual who fails to report would seem unlikely, not likely, to call attention to his

whereabouts by simultaneously engaging in additional violent and unlawful conduct”).

We turn, finally, to this analysis.

                                             A.

       It is important to note at the outset that the “ordinary case” of Lewis’s conduct

must involve habitations as opposed to dwellings. Of the 110 Ohio cases during the

relevant time frame (1991-1995) that reference Section 12 burglary, only one involves a

dwelling. In that case, the defendant broke into the vacant portion of a duplex while the

occupant was in jail. State v. McLemore, No. 95CA006037, 1995 Ohio App. LEXIS

3815 (Ohio Ct. App. Aug. 30, 1995). The overwhelming majority of cases involve




                                             17
intrusions into habitations.6 Cf. United States v. Mayer, 560 F.3d 948, 961-62 (9th Cir.

2009) (assessing ordinary case of Oregon burglary offense based on review of state court

decisions applying the statute). This is intuitive, given that Ohio law defines dwellings as

an extremely narrow subset of habitations. See Section II.B, supra. Because the ordinary

case involves habitations, and intrusions into habitations involving likelihood of presence

are excluded from our inquiry by Wilson, the ultimate issue becomes whether trespass by

force, stealth, or deception into a habitation with purpose to commit a felony or theft

ordinarily poses a serious potential risk of physical injury to another, when there is no

likelihood of presence.

                                             B.

       By definition, crimes involving no chance of another person being present seem to

pose no risk of physical injury. However, the Supreme Court has stated that the risk of

injury associated with burglary arises not necessarily from confrontation by an occupant,

but also from confrontation by “a police officer, or a bystander who comes to investigate.

That is, the risk arises not from the completion of the burglary, but from the possibility

that an innocent person might appear while the crime is in progress.” James, 550 U.S. at

203. The Government notes that the language of the Ohio statute is limited to the actual

or likely presence of someone inside the structure, see § 2909.01(C)(4) (“At the time, any

       6
        A few cases involve intrusions into other structures such as businesses or motel
rooms, but these structures are excluded from our inquiry for the reasons we explained in
Section II.E, supra.


                                             18
person is present or likely to be present in it.”), and argues that even if Lewis’s conduct

involved no likelihood of “presence” under Ohio law, the risk of harm posed by

confrontations with non-occupants alone is sufficient to satisfy the residual clause.

       But contrary to the Government’s reading of “presence in a structure,” Ohio courts

have read this element broadly. See Section II.D, supra. See also State v. Green, 480

N.E.2d 1128, 1132 (Ohio Ct. App. 1984) (“A person is likely to be present when a

consideration of all the circumstances would seem to justify a logical expectation that a

person could be present.”) (emphasis added); State v. Kilby, 361 N.E.2d 1336, 1339 (Ohio

1977); State v. Tippie, No. 91-CA-1511, 1993 WL 148775 (Ohio Ct. App. May 3, 1993);

State v. Williams, No. C-800141, 1981 WL 9663 (Ohio Ct. App. Mar. 4, 1981). Under

the Ohio statute, burglary involves no likelihood of presence only if committed at a time

when the occupants are normally absent for a reason like work or school, and no one else

has any reason to be there. See, e.g., State v. McCoy, No. 07AP-769, 2008 Ohio App.

LEXIS 2781, at *12 (Ohio Ct. App. Jun. 30, 2008); State v. Blackmon, No. 15099, 1992

WL 2945, at *5 (Ohio Ct. App. Jan. 2, 1992). Although the Government challenges this

characterization of Ohio law, it does not refute the reasoning behind these cases or offer

any authority to the contrary. See Appellant’s Br. 23 (stating without support that “the

likely presence concept of [Ohio’s] aggravated burglary offense . . . is limited to

occupants”). Because the offense is narrowly defined to exclude situations with the




                                             19
greatest potential for confrontation, Ohio burglary involving no likelihood of presence

poses less risk of physical injury than typical burglary.

       In sum, Lewis’s offense by definition involves very little chance of confrontation

by occupants, neighbors, or relatives. The possibility of being confronted by the police

still creates some minute risk of physical injury, but the risk is greatly diminished

compared to the risk posed by the conduct at issue in James, and to Ohio burglary

involving likelihood of presence. Cf. Mayer, 560 F.3d at 963 (holding that Oregon

burglary offense poses serious potential risk of injury only with respect to occupants and

those in the “immediate area of a building if a confrontation does occur”). Although we

can imagine a violation of Section 12(A)(1) that does not involve likelihood of presence

but nevertheless results in a violent confrontation with a police officer or passerby,

“ACCA does not require metaphysical certainty. Rather, [the residual clause] speaks in

terms of a ‘potential risk.’ These are inherently probabilistic concepts.” James, 550 U.S.

at 207. “Our inquiry is not whether ‘every conceivable factual offense covered by a

statute’ presents a serious potential risk of physical injury, but rather whether, ‘in the

ordinary case’ conduct falling within the state statute presents such a risk.” Mayer, 560

F.3d at 960 (quoting James, 550 U.S. at 208) (emphasis in original). Therefore, despite

the possibility that an innocent person could stumble upon the scene of a Section 12(A)(1)

burglary when an occupant is not likely to be present, that possibility is too remote to give




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rise to a “serious potential risk of physical injury to another” in the typical case. § 924(e)(2)(B)(ii).

       Under the categorical approach, the ordinary case of Lewis’s offense involves

intrusion into a habitation with no likelihood of presence. Absent the likely presence of

another, we hold that the risk of physical injury posed by conduct violative of Section

12(A)(1) is too diminished to satisfy ACCA’s residual clause. Accordingly, we will

affirm the judgment of the District Court.




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