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Sims ACA sentence enchancement (Common Law Burglary (The Legislature…

- - - - Policy (drifter) argument any "home"
        
        Leg history ( intended to en broaden) Taylor and concerned about people being present at the burglary
        
        HOWEVER, Leg rejected the "terms" used by the various states opting to apply uniformity
    - - Leg history: removed any mention of auto from bill
        
        The panel's rationale for distinguishing auto theft from burglary in this respect consists of one sentence: “In contrast, while auto theft without consent may involve some potential for confrontation, it does so to a far lesser extent.” Williams v. U.S.
        
        Many states have seperate vehicular Burglary statutes
        
        Utah: U.C.A. 1953 § 76-6-204
    - - apply to structure as a way to enbroaden
        
        residual clause
    - - Plain meaning: use "or" indicates divisible
        
        Only Means not elements
      - Iowa Surpeme Court determined a burglary statute with "or" was in fact indivisible
        
        Cert the question to the Ark Supreme Court, determining otherwise would encroach on State's Police Power
        
        Sims' conviction may be narrowed or broadened based on the sentencing documents/ colliquiy/ etc
      - SC implies Mass statute is divisible in Decamps: wording is "boats and cars" as well as bulding
    - - Rule of Lenity due to Notice under Due Process
        
        ambiguity
        
        std: odd result/ contrary to legislative intent Holy trinity
        
        interp 1: vehicle falls outside of building or stucture due to no real property
        
        interp 2: vehicle falls under other structure (tent/ RV/ etc) leg intent seems to include some vehicles where people may be present escalating nature of crime
        
        odd result if
        
        violation of 5th amendment
        
        Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent. Lewis v US
      - Legislative Acquiescence
  - - - Consistency
        
        Should not depend in illustrations, all discussion was based on the the second holding of Taylor
    - - Court has been consistent in using this illustration
        
        See pin 2250 Mathis
        
        Consistency
- - - - sentencing enhancement at its core is a policy argument
        
        state police power is clear
        
        allow state legislatures to modify as wanted
        
        by adopting the illustration from Taylor, the legislature could properly respond
      - some may get away with crimes and have no enchancement
      - DIckerson: Whether one has been “convicted” within the language of the gun control statutes is necessarily, as the Court of Appeals in the present case correctly recognized, *112 649 F.2d, at 219, a question of federal, not state, law, despite the fact that the predicate offense and its punishment are defined by the law of the State. United States v. Benson, 605 F.2d 1093, 1094 (CA9 1981). This makes for desirable national uniformity unaffected by varying state laws, procedures, and definitions of “conviction.”
      - However: Logan
        
        restates Dickerson: yielded “nothing less than a national patchwork,” id., at 122, 103 S.Ct. 986.
        
        in direct response to Dickinson: Congress amended § 921(a)(20) of the Firearms Owners' Protection Act (FOPA) stating state law did not determine *480 the present impact of a 28 prior conviction.
        
        Here, there is no such statement in from ACCA
        
        We are no giving state control through classification
        
        but in effect we are giving control and again yielding nothing less than a national patchwork in claiming elements must fit and providing an illustration where a statute may be narrower
    - - Since the adoption of generic burglary in Taylor, States have diverged tremendously in describing the locational elements within their burglary statutes. Compare ARIZ. REV. STAT. ANN. §§ 13-1501(12) (2012) (“any
        vending machine or any building, object, vehicle, railroad car”) and COLO. REV. STAT. § 18-4-204(1) (2011) (“vault, cash register, coin vending machine, . . . coin telephone”) and LA. REV. STAT. ANN. § 14:62 (2011). (" dwelling, vehicle, watercraft, or other structure, movable or immovable, or any cemetery")
- - - - without clear statement allows Government to "pick and choose"
      - morally repugnant crime
      - without an adequately described "violent" portion may not be deserving
  - - - locational element is not clearly described
- - - - list circuits in reverse chronological order
  - - - no quotations
      - no Holding
    - - NEED signal
    - - SIGNAL
    - - for contradiction
        
        See xxx; see also xxx. But see xxxx
    - - No pin cite
- - - - Uniformity in application
- - - - ARK supreme court said ....about Wyles
      - similar statute contruction
    - - dicta but strongly followed
    - - The New Mexico burglary statute is broader, defining burglary as “the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.” N.M.Stat.Ann. § 30-16-3 (1978).
        
        state definition of burglary is too broad,
        
        9 F.3d 890 Lujan 10th Circ
    - - United States. v. Lamb
        
        Wisconsin statute: burglary of a motor home or other motorized type of home or a trailer home, where or not any person is living in such a home.
        
        held to be broader
- - - - the Arkansas Supreme Court has described the subsections of the Arkansas manslaughter statute as containing “alternative grounds,” Wyles v. State, 357 Ark. 530, 182 S.W.3d 142, 146
        
        The Government counters that Arkansas Code § 5–1–102 nonetheless makes clear that the manslaughter statute's subsections establish alternative elements going toward separate crimes.3 § 5–1–102 defines an “element of [an] offense” to mean, in pertinent part, “the conduct, the attendant circumstances, or the result of conduct that ... [e]stablishes the kind of culpable mental state required for the commission of the offense.”
        
        Government argues that the Arkansas manslaughter statute is divisible because it does not offer “illustrative examples,
        
        See, e.g., United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam) (recognizing that it is the Government's burden to prove that a prior conviction qualifies for a sentencing enhancement).
        
        Here, the parties agree that Lobaton–Andrade's conviction does not qualify as a crime of violence under the categorical approach because the Arkansas manslaughter statute is broader than—and thus not a categorical match with—the generic definition of manslaughter. But that does not end the inquiry because we may apply the modified categorical approach “to narrow an offense that otherwise would not be a categorical match with an enumerated offense.” Gomez–Perez, 829 F.3d at 326. However, that approach only applies when a statute is “divisible,” meaning it “sets out one or more elements of the offense in the alternative.”
    - - statute: § 5-10-103. Murder--Second degree
        
        (a) A person commits murder in the second degree if:
        
        (1) The person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life; or
        
        (2) With the purpose of causing serious physical injury to another person, the person causes the death of any person.
        
        (b) Murder in the second degree is a Class A felony.
      - Wyles: Court refused to instruct the jury on alternative grounds for manslughter those lesser-included offenses.
      - Arkansas Supreme Court has described the subsections of the Arkansas manslaughter statute as containing “alternative grounds, Wyles v. State, 357 Ark. 530, 182 S.W.3d 142, 146 (2004)
      - found that the two second-degree murder alternatives under Arkansas Code § 5–10–103(a)—the immediately preceding section—are “two ways” of establishing a single “mens rea element,” Wyles v. State, 368 Ark. 646, 249 S.W.3d 782, 786 (2007).
      - § 5-10-104. Manslaughter
        
        (a) A person commits manslaughter if:
        
        (1) The person causes the death of another person under circumstances that would be murder, except that he or she causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse.
        
        (B) The reasonableness of the excuse is determined from the viewpoint of a person in the actor's situation under the circumstances as the actor believed them to be;
        
        (2) The person purposely causes or aids another person to commit suicide;
        
        (3) The person recklessly causes the death of another person; or
        
        (4) Acting alone or with one (1) or more persons:
        
        (A) The person commits or attempts to commit a felony; and
        
        (B) In the course of and in furtherance of the felony or in immediate flight from the felony:
        
        (i) The person or an accomplice negligently causes the death of any person; or
        
        (ii) Another person who is resisting the felony or flight causes the death of any person.
      - The court gave a manslaughter instruction consistent with subsection 104(a)(3) as a lesser-included offense, but refused to instruct under subsection 104(a)(1). Regardless of whether manslaughter based on extreme emotional disturbance is a lesser-included offense to first-degree murder, we have held that it is reversible error to refuse the instruction where a rational basis exists