                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4238


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JOSE HERBERT HENRIQUEZ,

                Defendant − Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00504-RWT-1)


Argued:   January 28, 2014                 Decided:   June 27, 2014


Before TRAXLER, Chief Judge, and MOTZ and WYNN, Circuit Judges.


Vacated and remanded by published opinion. Judge Wynn wrote the
majority opinion, in which Chief Judge Traxler joined.    Judge
Motz wrote a dissenting opinion.


ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant.    Kelly O. Hayes, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
WYNN, Circuit Judge:

        Under the United States Sentencing Guidelines, judges may

increase    the       sentences    of    defendants     previously    convicted       of

violent crimes.           Generic burglary has been deemed a crime of

violence sufficient to support such an enhanced sentence.                             At

issue in this case is whether first degree burglary in Maryland

constitutes a generic burglary, i.e., a crime of violence that

can     support       a   sentence       enhancement       under     United    States

Sentencing Guidelines Section 2L1.2(b)(1)(A)(ii).                       Our careful

review leads us to conclude that it does not.                         We hold that

Maryland’s       courts     have        construed     Maryland’s      first     degree

burglary     statute       more     broadly      than      the     Supreme     Court’s

definition       of    generic     burglary.        Specifically,      there    is    a

realistic probability that Maryland’s statute covers burglaries

of motor vehicles or boats—places that the United States Supreme

Court      has        expressly      excluded       from     generic         burglary.

Accordingly, we vacate Defendant’s sentence, which the district

court enhanced based on Defendant’s prior conviction of first

degree burglary in Maryland, and remand for resentencing.



                                            I.

      Jose Herbert Henriquez (“Defendant”) pled guilty without a

plea agreement to one count of unlawfully reentering the United

States in violation of 8 U.S.C. § 1326(a) and (b)(2).                                His

                                            2
adjusted offense level was calculated to be 24, which consisted

of a base offense level of 8, plus a 16-level enhancement under

United        States     Sentencing           Guidelines              (“U.S.S.G.”)        Section

2L1.2(b)(1)(A)(ii).             The       offense         that    triggered      the    16-level

enhancement was Defendant’s 2000 Maryland conviction of first

degree burglary, which the presentence report (“PSR”) called a

crime of violence.              Over Defendant’s objection, the district

court      applied     the   enhancement           and         sentenced      Defendant      to   41

months of imprisonment. 1

        In explaining its decision to apply the enhancement, the

district      court    noted    that        U.S.S.G.           Section      2L1.2(b)(1)      “says

burglary of a dwelling[,]” and that the Maryland statute “is

four       square   within     the    language            of    the    applicable      Guideline

Section 2L1.2 as ‘burglary of a dwelling.’”                                 J.A. 80–81.           The

district court also explained that “Maryland retains the more

traditional”         definition       of     burglary           and    “has    not   chosen       to

expand it to any old structure.”                      J.A. 80.

        Defendant      filed     a        timely      appeal          and   raises     the    same

argument that he made below: that a conviction of first degree

burglary       in    Maryland        is     not       a   crime        of   violence      because

       1
       The PSR recommended, and the district court granted, a 3-
level reduction for Defendant’s acceptance of responsibility.
The resulting 41-month sentence was within the Guidelines range
of 41 to 51 months for Defendant’s total offense level of 21 and
criminal history category of II.



                                                  3
Maryland’s definition of burglary exceeds the scope of generic

burglary     as     defined     by   the       United       States    Supreme     Court.

Specifically,       Defendant     argues       that    first    degree       burglary     in

Maryland lacks a necessary element of generic burglary—that the

crime take place in a building or structure.                        Defendant contends

that because Maryland has not limited the term “dwelling” to

buildings or structures, one could be convicted in Maryland of

burglarizing boats or motor vehicles, which are enclosures that

the Supreme Court has expressly excluded from the definition of

generic    burglary.       Upon      careful      review,      we    must    agree    with

Defendant.



                                           II.

     A defendant convicted of illegally reentering the United

States is subject to a sentencing enhancement if, before his

removal,    he     had   been    convicted        of    a    “crime     of    violence.”

U.S.S.G.    §     2L1.2(b)(1)(A)(ii).            The    Guidelines      definition        of

“crime     of     violence”     specifically           includes      “burglary       of   a

dwelling.”       U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii).                     Whether

a prior conviction qualifies as a crime of violence is a legal

question that we review de novo.                 United States v. Bonilla, 687

F.3d 188, 190 (4th Cir. 2012), cert. denied, 134 S. Ct. 52

(2013).



                                           4
                                              A.

     In   Taylor          v.   United   States,       495   U.S.    575    (1990),      the

Supreme     Court         considered     whether       “burglary”        constituted     a

“violent felony” under the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e). 2            The Supreme Court sought to tease out “some

uniform definition independent of the labels employed by the

various States’ criminal codes.”                    Taylor, 495 U.S. at 592.            The

Court held that “[a]lthough 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.”               Id. at 598.          The Supreme Court noted that

“there    is     no       problem”      for        convictions     in     states   whose

definitions of burglary are the same as—or narrower than—this

generic definition.              Id. at 599.        But the same could not be said

of states that “define burglary more broadly, e.g., . . . by

including places, such as automobiles[,]” i.e., places “other

than buildings.”           Id.

     Fifteen years later, the Supreme Court stated even more

clearly that the ACCA “makes burglary a violent felony only if


     2
       Although Taylor pertained to the ACCA, we apply the same
analysis to the question of whether a particular crime
constitutes a “crime of violence” under the Guidelines.       See
United States v. Bonilla, 687 F.3d 188, 190 n.3 (4th Cir. 2012).



                                              5
committed in a building or enclosed space (‘generic burglary’),

not in a boat or motor vehicle.”                     Shepard v. United States, 544

U.S.    13,    15-16      (2005).         Although         Taylor    and      Shepard     both

involved the ACCA’s enumerated crime of “burglary,” rather than

the Guidelines’ enumerated crime of “burglary of a dwelling” at

issue    here,       this    Court        has       nonetheless         applied     Taylor’s

definition of generic burglary to the Guidelines’ inquiry, “with

the    additional        requirement       that      a    burglary      qualifying        as   a

‘crime of violence’ must involve a dwelling.”                           Bonilla, 687 F.3d

at 190–91 n.3 (citing, inter alia, United States v. Wenner, 351

F.3d 969, 973 (9th Cir. 2003) (“[T]he most logical and sensible

reading of the Guidelines . . . is to construe ‘burglary of a

dwelling’      as    the     Taylor       definition        of    burglary,        with      the

narrowing       qualification          that         the     burglary        occur       in     a

dwelling[.]”)).             Thus,     before        applying      the     enhancement          in

U.S.S.G.       Section       2L1.2(b)(1)(A)(ii)              to     a      defendant         who

previously had been convicted of burglary, a sentencing court

must    satisfy       itself       that     the       defendant’s         prior     burglary

conviction entailed the “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.               The sentencing court

also    must   ensure       that    the     burglary       occurred      in    a   dwelling,

Bonilla, 687 F.3d at 190 n.3, and that the dwelling was not a



                                                6
boat, motor vehicle, or other enclosure that is excluded from

the definition of generic burglary, Shepard, 544 U.S. at 16.

       Further, we employ the categorical approach here because

“the crime of which the defendant was convicted has a single,

indivisible set of elements.”           Descamps v. United States, 133 S.

Ct. 2276, 2282 (2013).         Our analysis is thus “restricted to ‘the

fact of conviction and the statutory definition of the prior

offense.’”       United States v. Aparicio-Soria, 740 F.3d 152, 154

(4th Cir. 2014) (en banc) (quoting Taylor, 495 U.S. at 603).

       Finally,     federal    courts   have    no   “authority   to    place   a

construction on a state statute different from the one rendered

by the highest court of the State.”                  Johnson v. Fankell, 520

U.S.   911,   916    (1997).      Rather,      “[t]o   the   extent    that   the

statutory definition of the prior offense has been interpreted

by the state’s highest court, that interpretation constrains our

analysis of the elements of state law.”                   Aparicio-Soria, 740

F.3d at 154.      With this legal framework in mind, we now turn to

the text of Maryland’s first degree burglary statute and the way

in which the Maryland Court of Appeals has interpreted it.

                                        B.

       Section    6-202   of   Maryland’s      criminal   code   provides     that

“[a] person may not break and enter the dwelling of another with

the intent to commit theft or a crime of violence.”                    Md. Code

Ann., Crim. Law § 6-202(a).             The statute does not define the

                                        7
term “dwelling,” and it was not until 2008 that the Maryland

Court   of   Appeals,   Maryland’s   highest   court,   considered

“precisely what is meant by a ‘dwelling[.]’”   McKenzie v. State,

962 A.2d 998, 1001 (Md. 2008).       After determining that “the

General Assembly intended the meaning of ‘dwelling,’ insofar as

the burglary statutes are concerned, to be subject to ongoing

clarification in the case law[,]” id. at 1002, Maryland’s high

court reviewed opinions by the intermediate court, the Maryland

Court of Special Appeals, id. at 1003–07.

     The Court of Appeals explained that the intermediate court

had developed the following test for determining whether a place

was a dwelling under Maryland’s burglary statutes:

     “The test as to whether or not a building is a
     dwelling house is whether or not it is used regularly
     as a place to sleep.    No building becomes a dwelling
     by reason of the fact that someone may sleep there on
     rare occasions or take an occasional nap there[.]”

Id. at 1003 (quoting Poff v. State, 241 A.2d 898, 900 (Md. Ct.

Spec. App. 1968)) (internal quotation marks omitted).   The Court

of Appeals described how the intermediate court applied that

test in 1983 to hold that a recreational vehicle was a dwelling

under Maryland’s daytime housebreaking statute, and it recounted

the intermediate court’s explanation:

     [T]he “crucial factor” is “whether [the structure] is
     a place intended to be used, and in fact is used, as
     an abode and place for humans to sleep. . . .     The
     paramount interest that [the daytime housebreaking
     statute] seeks to protect is the right of human

                                8
       habitation to be free from the terror of an invader.
       Accordingly, it matters not what type of facility the
       individual chooses to use for his habitation, so long
       as he intends it to be his abode and so uses it.”

Id. at 1005 (quoting Kanaras v. State, 460 A.2d 61, 71 (Md. Ct.

Spec. App. 1983)).

       To be sure, McKenzie involved the question of whether a

temporarily unoccupied apartment constituted a “dwelling.”                                  It

did not squarely present the question at issue here: whether an

enclosure      that   is    excluded         from      the    federal    definition         of

generic    burglary—such          as    a    boat   or       motor    vehicle—can      be    a

“dwelling” under Maryland’s burglary statutes.                           But nothing in

McKenzie indicates that the Court of Appeals found fault with

the intermediate court’s reasoning quoted above—reasoning that

expressly captured recreational vehicles and easily could cover

those boats and motor vehicles that people intend to use, and do

use, as their dwellings.

       Rather, the Maryland Court of Appeals has embraced a notion

of the term “dwelling” that renders its first degree burglary

statute    broader    than       the    Supreme        Court’s       “generic    burglary”

definition.      This is demonstrated by the Maryland high court’s

explicit    adoption       of    “the       reasoning    and     holding    of       the   New

Jersey Supreme Court in [State v. Scott, 776 A.2d 810 (N.J.

2001)].”    Id. at 1007.           The Maryland Court of Appeals explained

that   Scott    defined         “‘dwelling’       as    ‘a    place     where    a    person


                                              9
resides and sleeps[,]’” id. at 1006 (quoting Scott, 776 A.2d at

814), and that Scott “is generally in line with the Court of

Special Appeals’ opinions we have discussed.”                             Id. at 1007.

      We, therefore, must conclude that Maryland’s definition of

a “dwelling” as used in its first degree burglary statute is a

place where a person resides and sleeps.                             We decline to impose

on this definition a limiting construction that would exclude

boats or motor vehicles—enclosures not covered by the federal

definition of generic burglary.                      And although we have found no

Maryland Court of Appeals case that has defined a dwelling as a

boat or motor vehicle—enclosures clearly outside the scope of

the   generic       definition—such           a     case       is    unnecessary       for    our

conclusion.         We instead assess “whether there is a realistic

probability” that Maryland “would apply its statute to conduct

that falls outside the generic definition of” burglary.                                    United

States     v.     Perez-Perez,         737    F.3d       950,       955    (4th     Cir.   2013)

(quotation marks omitted).

      We   conclude        that    there      is     a    realistic        probability        that

Maryland        would    apply     its       first       degree      burglary       statute    to

conduct that falls outside the Supreme Court’s definition of

“generic burglary.”              This conclusion is well-supported because

the   Maryland          Court     of   Appeals           has    not       limited    the     term

“dwelling” to a building or structure.                              Further, the Maryland

Court of Special Appeals has held a recreational vehicle to be a

                                               10
dwelling—a holding that the Court of Appeals discussed and in no

way rejected when it had the chance to do so in McKenzie.

       We turn now to an examination of the parties’ arguments.



                                              III.

       Defendant makes the simple argument that Maryland’s courts

have construed the term “dwelling” broadly enough to convict a

person of burglarizing an enclosure excluded from the federal

definition          of     generic     burglary.            Because     the      categorical

approach      precludes          federal    courts        from   looking    to    the     facts

underlying a prior conviction, a sentencing court would have no

way    to     ensure       that    a   first       degree     burglary      conviction      in

Maryland did not involve an excluded enclosure—such as a boat or

motor vehicle.             Therefore, Defendant argues, the district court

erred    in    applying          the   16-level         enhancement     under     Guidelines

Section     2L1.2(b)(1)(A)(ii)              for    his    prior    conviction      of     first

degree burglary in Maryland.                  For the reasons already discussed,

we agree.

       The Government counters that we should affirm Defendant’s

sentence because “Maryland’s first-degree burglary statute fits

well    within       the       definition    of        ‘burglary   of   a   dwelling’       for

purposes of” Guidelines Section 2L1.2(b)(1)(A)(ii).                               Appellee’s

Br.    at     11.         The     Government’s          argument   is   similar      to    the

reasoning       of       the    district     court,        which   concluded       that    the

                                                  11
Maryland statute Defendant was convicted of violating “is four

square within the language of the applicable Guideline Section

2L1.2 as ‘burglary of a dwelling.’”                 J.A. 80.

       The Government further contends that Taylor stands for the

proposition that the definition of burglary under the ACCA is

broader than the common law definition of burglary.                                And, as

noted by the Supreme Court in Taylor, Maryland is “one of the

few    [states]    .    .    .   maintaining       the    narrow,    more    restrictive

common-law    definition”           of   burglary.         Appellee’s        Br.   at   11.

Consequently,      the        Government      argues,      “Maryland’s       offense      of

first-degree burglary . . . fits squarely within the definition

of    ‘burglary’       as    defined     in   Taylor.”        Id.      We    reject     the

Government’s arguments.

       It is true that Maryland’s first degree burglary statute

criminalizes the “burglary of a dwelling” in terms that exactly

match those used in the commentary to the sentencing enhancement

at issue here.              Compare Md. Code Ann., Crim. Law § 6-202(a),

with    U.S.S.G.       §     2L1.2(b)(1)(A)        cmt.    n.1(B)(iii).            A    mere

comparison of the language, however, does not end the inquiry

because    the     Maryland         statute        does    not      define     the      term

“dwelling.”        We       must,   therefore,      compare      the   Maryland        state

courts’ application of the statute to the federal definition of

generic burglary.            As explained above, the ACCA “makes burglary

a violent felony only if committed in a building or enclosed

                                              12
space (‘generic burglary’), not in a boat or motor vehicle.”

Shepard, 544 U.S. at 15–16.              If a defendant could be convicted

of burglarizing a dwelling that happens to be a boat or motor

vehicle,      Shepard    precludes     the        application    of     the     sentencing

enhancement in Guidelines Section 2L1.2(b)(1)(A)(ii) to such a

conviction.

       It   is   easily    conceivable        that       Defendant’s      first    degree

burglary      conviction        from   2000        involved     one       of    Shepard’s

precluded structures: a boat or a motor vehicle.                          As noted, the

Court    of    Special     Appeals     has    already       deemed    a    recreational

vehicle a dwelling.         Kanaras, 460 A.2d at 71.              And if a dwelling

is   nothing     more    than    “‘a   place       where    a   person     resides    and

sleeps[,]’” such a place may well be a houseboat, particularly

in a state with as much waterfront as Maryland, or even a car.

McKenzie, 962 A.2d at 1006 (quoting Scott, 776 A.2d at 814).

Yet the United States Supreme Court has clearly excluded such

enclosures       from     the    definition         of     generic      burglary     and,

consequently,       from     application           of    the    crime      of    violence

enhancement.       Shepard, 544 U.S. at 16.

       We are also unpersuaded by the Government’s argument that

Maryland’s first degree burglary statute must be “narrow[er],”

and thus, within, the generic definition of burglary because the

Supreme Court in Taylor “specifically cited Maryland as one of

four    [s]tates    that    retained     th[e]          common-law    definition”      of

                                             13
burglary.       Appellee’s       Br.     at    10.       Put    simply,       the    Supreme

Court’s mentioning of Maryland’s burglary law nearly twenty-five

years ago does not negate the need for federal sentencing courts

to undertake the analysis described above.                             Since 1990, when

Taylor was decided, Maryland’s highest court has indicated that

the   elements    of    the     statute       codifying       that     state’s      burglary

offenses are “subject to ongoing clarification in the case law.”

McKenzie, 962 A.2d at 1002.                   What’s more, the Supreme Court’s

decision in Shepard “makes burglary a violent felony only if

committed in a building or enclosed space (‘generic burglary’),

not in a boat or motor vehicle.”                     Shepard, 544 U.S. at 15–16.

And at least one defendant in Maryland has had his conviction

for   daytime    housebreaking           upheld      after     the    Court    of    Special

Appeals   determined          that   a   recreational         vehicle      constituted     a

“dwelling”      for     the     purposes       of    Maryland’s        burglary       laws—a

holding expressly recognized and left untouched by the Maryland

Court of Appeals in McKenzie.              Kanaras, 460 A.2d at 71.

      In sum, we conclude that Maryland’s first degree burglary

statute   encompasses          “conduct       that    falls     outside       the    generic

definition”      of     burglary.             Perez-Perez,           737   F.3d     at   955

(quotation      marks    omitted).             As    a   consequence,         a     Maryland

conviction of first degree burglary cannot constitute a crime of

violence for purposes of Guideline Section 2L1.2(b)(1)(A)(ii).



                                              14
The   district   court   erred   by    applying   that   enhancement,   and

Defendant’s sentence must be vacated.



                                      IV.

      For the foregoing reasons, we vacate and remand Defendant’s

sentence.

                                                    VACATED AND REMANDED




                                      15
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

     There    is    much    with       which    I    agree    in     the    fine   majority

opinion.      I agree that “generic burglary” has been deemed a

crime   of   violence       sufficient         to   support     an    enhanced        federal

sentence.     I agree that we employ the categorical approach to

determine whether first-degree burglary in Maryland criminalizes

no more than “generic burglary.”                      I agree that the majority

correctly     states       the     elements         of    “generic         burglary”        and

correctly    applies       those    elements         to   the      Guidelines      context.

Finally, I agree that, as a federal court, we have no authority

“to place a construction on a state statute different from the

one rendered by the highest court of the State.”                                Johnson v.

Fankell, 520 U.S. 911, 916 (1997).                    Indeed, it is precisely for

these   reasons      that     I    must     respectfully           dissent.           For     in

concluding     that        Maryland’s          first-degree          burglary         statute

criminalizes       more    than    “generic         burglary,”       the    majority        does

“place a construction” on that statute “different from the one

rendered” by Maryland’s highest court.



                                            I.

     In Taylor v. United States, the Supreme Court sought to

provide,     for    purposes      of    a   federal       sentencing        predicate,        a

“uniform     definition      [of    burglary]         independent          of   the    labels

employed by the various States’ criminal codes.”                            495 U.S. 575,

                                            16
592 (1990).            Before settling on a “generic, contemporary meaning

of burglary,” id. at 598, the Court considered the traditional,

common-law         definition         of    burglary,          i.e.,     the        breaking      and

entering of a dwelling at night, with intent to commit a felony.

In   the    course       of    doing       so,    the   Court     noted    that        common-law

burglary is “the core, or common denominator” of contemporary

burglary, id. at 592, and cited Maryland as a rare example of a

state      that    has       retained       the    narrow,       common-law           meaning     or

“something closely resembling” it, id. at 593 n.6.

      Because most other states had expanded the definition of

burglary      beyond          its     common-law        origins        (e.g.,        to    include

unlawful entry during daytime and into structures other than

dwellings), the Taylor Court adopted a definition of “generic

burglary”          that        is      broader          than      common-law              burglary.

Accordingly,           the    Court    held      that    “generic       burglary”          includes

“unlawful         or     unprivileged         entry      into,     or     remaining         in,    a

building or other structure, with intent to commit a crime.”

Id. at 599.             Immediately after adopting this broader, generic

definition, the Court made clear that it includes common-law

burglary.          The Court explained that “burglary convictions in

common-law             States”      categorically              qualify         as      sentencing

predicates because “the conviction necessarily implies that the

defendant has been found guilty of all the elements of generic

burglary.”        Id.

                                                  17
      Although Taylor focused on the meaning of “burglary” under

the   Armed      Career      Criminal       Act     (“ACCA”),       we     apply      Taylor’s

generic definition in the Guidelines context as well, with the

added requirement that the burglary involve a dwelling.                                      See

United States v. Bonilla, 687 F.3d 188, 190-91 n.3 (4th Cir.

2012);    see    also      U.S.S.G.    § 2L1.2,           cmt.    n.1(B)(iii)        (defining

“crime of violence” to include “burglary of a dwelling”).                                Thus,

because    the       categorical       approach       governs       our       inquiry    here,

Henriquez’s          Maryland       conviction        for        first-degree         burglary

qualifies       as    a   prior     crime     of    violence       if    it    contains      the

following elements:               (1) an unlawful or unprivileged entry into

(2) a building or other structure (3) that is a dwelling, with

(4) intent to commit a crime.



                                              II.

      Maryland’s          first-degree      burglary        statute      provides       that   a

“person may not break and enter the dwelling of another with

intent to commit theft or a crime of violence.”                               Md. Code Ann.,

Crim.    Law    §    6-202(a).         This    definition          would      seem,     as   the

Supreme Court suggested in Taylor, to fit comfortably within the

definition of “generic burglary.”                    Yet my colleagues hold to the

contrary       because,      while     they         recognize       that       the    Maryland

definition requires entry into a “dwelling,” they contend that

Maryland       courts      have    construed        the    term    “dwelling”         broadly.

                                              18
They   say    that     under         Maryland     law      a    dwelling       need    not     be   a

“building or other structure” as required by Taylor, but can be

a motor vehicle or boat.                     With respect, I believe they have

misread Maryland law.

       “The common law felony of burglary crossed the seas from

England      and    became       a    part   of      the       common    law    of    Maryland.”

Warfield      v.     State,      554     A.2d     1238,         1247    (Md.     1989).         For

centuries burglary remained a common-law offense in Maryland;

only   recently       has     the      Maryland      General          Assembly       adopted    the

statutory definition set forth above.                             McKenzie v. State, 962

A.2d 998, 1000 (Md. 2008).                   State statutes still do not define

“dwelling,”         but     do       instruct     that          the     term     “retains       its

judicially determined meaning.”                      Md. Code Ann., Crim. Law § 6-

201.    Under Maryland law, when a term “‛retains its judicially

determined meaning,’ it is subject to continued clarification in

case law.”         McKenzie, 962 A.2d at 1001.

       In 2008, Maryland’s highest court, the Court of Appeals,

addressed the meaning of “dwelling” for purposes of the state’s

burglary statutes and made clear that the common-law definition

of the term continues to control.                          Id.         Indeed, the McKenzie

court expressly noted that “the meaning of ‘dwelling house’ [i]s

the same as its common law meaning for burglary purposes.”                                      Id.

at 1003; see also id. at 1002 & 1002 n.1 (explaining that if a

term   “is    not     otherwise         defined       by       statute,    the        common    law

                                                19
meaning is assumed to be intended” and noting that “Maryland’s

statutory offense of burglary in the first degree is most akin

to   common      law    burglary,      without         the     element      of    ‘in    the

nighttime.’”).          Thus,    although       the    meaning       of    “dwelling”       is

“subject to continued clarification in case law,” id. at 1001,

Maryland’s highest court has recently explained that Maryland

defines “dwelling” as it was defined at common law.                            And because

generic    burglary      covers      “at   least       the     ‘classic’         common-law

definition”      of    the   crime,    Taylor,        495    U.S.    at    593    (emphasis

added), Maryland first-degree burglary necessarily constitutes a

crime sufficient to support an enhanced federal sentence.

     My    friends      in    the    majority     resist       this       straightforward

conclusion       on    the   ground     that     McKenzie           indicates     that      in

Maryland    “a    dwelling      is   nothing     more        than    ‘a   place    where     a

person    resides      and   sleeps,’”     and    so,        assertedly,       encompasses

boats and motor vehicles.             Supra at 13.            But, in fact, McKenzie

neither holds nor suggests this.                      Rather, the McKenzie court

expressly     observed       that    “[t]he     test    as     to    whether     or   not    a

building is a ‘dwelling house’ is whether or not it is used

regularly as a place to sleep.                No building becomes a ‘dwelling’

by reason of the fact that someone may sleep there on rare

occasions or take an occasional nap there.”                         McKenzie, 962 A.2d

at 1003 (quoting Poff v. State, 241 A.2d 898, 900 (Md. App.



                                           20
1968)) (emphases added and alteration omitted). 1                   In Maryland,

therefore, a person may be convicted of first-degree burglary

only if he unlawfully enters a building or structure and that

building or structure is a dwelling.

     To be sure, Maryland courts have repeatedly stressed that a

“dwelling,” for burglary purposes, is a place where one resides

and regularly sleeps.           See id. at 1003-06 (canvassing Maryland

case law).      But they do so not because a dwelling need not be a

building   or    structure.       Rather,     it   is   because    “[c]ommon    law

burglary   and,     by   extension,      Maryland’s      statutes     prohibiting

burglary   of     the    ‘dwelling     of    another,’    are     crimes   against

habitation.”      Id. at 1002 (citing W. Blackstone, 4 Commentaries

169; R. Perkins & R. Boyce, Criminal Law, ch. 3 § 1 (3d ed.

1982); W. LaFave & A. Scott, Substantive Criminal Law, § 8.13(c)

(1986)).        Unlike    the   more    expansive       generic    definition    of

burglary, which covers all buildings and structures, common-law

(and so Maryland) burglary covers only buildings and structures

used as a “dwelling.”           See LaFave & Scott at § 8.13(c).               And,

under Maryland law “[a] structure does not become a dwelling

until someone occupies it.”          McKenzie, 962 A.2d at 1002.

     1
        Notably, in its three-page discussion of the term
“dwelling,” the McKenzie court recognized more than twenty-five
times that, for purposes of Maryland burglary law, a “dwelling”
is a “building” or “structure,” or a unit within a “building” or
“structure.” See id. at 1003-05.



                                        21
       Maryland           courts,      moreover,       have     consistently      rejected

efforts         to    stretch    the     definition      of    “dwelling”       beyond       its

narrow origins.              Maryland’s intermediate appellate court, the

Court of Special Appeals, for example, has held that basements

of apartment buildings, vacant apartment rooms, furnished but

never          occupied     homes,       warehouses,          and    churches     are        not

“dwellings” within the meaning of the state’s burglary statutes.

Id. at 1003-05 (collecting cases); see also Sizemore v. State,

272 A.2d 824, 827 (Md. App. 1971) (“a church is not a dwelling

house”).         By contrast, any one of those places would satisfy the

generic definition of burglary.                       See W. LaFave, 3 Substantive

Criminal Law § 21.1 (2d ed. 2003) (explaining that contrary to

the    common-law          requirement     that       burglary      involve   a   dwelling,

“statutes         today     typically     use    a     much    broader   term,        such    as

‘building’           or   ‘structure’”).         In    sum,     Maryland’s      requirement

that       a    “dwelling”      be   a   place       where    one   resides     and    sleeps

renders it narrower, not broader, than Taylor’s buildings and

structures. 2

       2
       For the same reason, State v. Scott, 776 A.2d 810 (N.J.
2001), is no help to the majority.     Like Maryland, New Jersey
follows the common law meaning of “dwelling.”        Id. at 814
(explaining that because the New Jersey legislature failed to
define ‘dwelling,’ the court must “consider the common-law
definition of that term”).     Moreover, the jury in Scott was
expressly instructed to “make a determination whether, one, [the
temporarily unoccupied apartment in question] was a structure,
and two, whether the structure was a dwelling.” Id. at 812.


                                                22
      Nothing in Kanaras v. State, 460 A.2d 61 (Md. App. 1983) is

to the contrary.            In Kanaras, the Court of Special Appeals held

that a stationary motor home that had, for several weeks, been

parked at a campground and hooked up to electrical and plumbing

services, was a “dwelling” for burglary purposes.                       Id. at 71-72.

The court noted that burglary law was “developed for the purpose

of   protecting       the    habitation      of    an    individual,”       and   that   a

“dwelling” must therefore be a place where one lives and sleeps.

Id. at 69.      But, Kanaras recognized, a “dwelling” need not be a

“permanent structure so long as persons intend to live in the

structure and in fact use it as an abode for human habitation.”

Id. at 71 (emphases added).                  Thus, although the Kanaras court

stated that “it matters not what type of facility the individual

chooses   to     use    for     his    habitation,”        it    did   so    simply      to

underscore that a “dwelling” need not be “a formal traditional

mortar and brick” home so long as it is otherwise a building or

structure.      Id.

      Furthermore, the Kanaras court was careful to confine its

holding to the “facts before” it.                  Id. at 72; see also McKenzie,

962 A.2d at 1005 (explaining that Kanaras was rooted in the

common    law    and        confined   to     the       “facts   presented”).            It

specifically      cautioned:           “We    do    not     hold   that      under    all

circumstances a motor home is a dwelling house.”                            Id. at 72.

Rather, it noted that it “might reach a different result” under

                                             23
different facts –- e.g., had the motor home been “simply parked

on a street rather than a campsite” and not “connected to health

conveniences.”        Id. at 71.        By emphasizing that the motor home

was   “stationary       and    connected          for     electrical      and    sanitary

conveniences,”        the    Kanaras    court       made    clear    that       it   was    a

“structure” affixed to the ground, and therefore qualified as a

“dwelling.”       Id.         Not    only    did    the     court    not    extend        the

definition of dwelling to boats and cars, it expressly warned

that a car or other vehicle, “used as a vehicle primarily for

transportation purposes, should not be regarded as a dwelling

house,    even   if    occasionally         used    for    sleeping.”       Id.      at    69

(emphasis added). 3

      Kanaras,    in        short,     did    not       stretch     the     meaning        of

“dwelling” to motor vehicles or boats.                      Instead, it faithfully

followed the common-law definition of “dwelling,” construing the

term as a “building or other structure,” Taylor, 495 U.S. at

599, in which a person resides and sleeps.                          Indeed, the trial



      3
       I note that my colleagues’ suggestion that “dwelling”
encompasses cars would render superfluous a separate, more
specific Maryland statute. See Md. Code Ann., Crim. Law § 6-206
(forbidding the “breaking and entering [of a] motor vehicle”).
This, of course, is at odds with Supreme Court instruction that
we avoid construing a statute in a way that renders another more
specific statute superfluous.   See, e.g., RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012).




                                             24
court in Kanaras expressly instructed the jury that “a dwelling

house refers to a structure which is used regularly as a place

to     sleep”       and     that     “[i]n     order        to    find     the    defendant

guilty . . . you must find that the camper or motor home was a

structure regularly used as a place to sleep.”                             460 A.2d at 72

(emphases         added).      If,    as     the    majority      holds,    entry   into   a

“structure” was not an element of burglary under Maryland law,

this       jury   instruction        would    have    been       erroneous.       That   the

Kanaras court held that the trial judge “did not err” in “giving

[this] instruction” removes any doubt as to the question whether

a    “dwelling,”         for   purposes      of     Maryland’s      burglary     statutes,

requires entry into a “building or other structure.” 4



                                              III.

       In sum, Maryland’s first-degree burglary statute tracks the

common      law    and    so   is    “narrower       than   the    generic”      definition

developed in Taylor, 495 U.S. at 598.                            Henriquez’s conviction

       4
       Thus, in United States v. Martin, No. 12-5001, -- F.3d --
(4th Cir. 2014), we recently held that Maryland’s fourth-degree
burglary statute -- which provides in relevant part that “[a]
person may not break and enter the dwelling of another,” Md.
Code Ann., Crim. Law § 6-205(a) -- does not qualify as generic
burglary because it “does not require that the defendant have
the intent to commit a crime when he enters the dwelling.” Id.
at *5-6.   Neither Martin’s lawyer nor the court suggested that
the Maryland statute did not constitute generic burglary
because, pursuant to Maryland law, a “dwelling” need not be a
“building or other structure.”



                                               25
thus “necessarily implies that [he] has been found guilty of all

the elements of generic burglary.”         Id. at 599.      Accordingly,

that   conviction   categorically    qualifies   as   a   proper   federal

sentencing predicate.    I would affirm.




                                    26
