When a Burglary Is Not a Crime of Violence

US v. Martin: This is yet again another case that wades into the murky waters of figuring out whether a prior conviction is a "crime of violence" or not.  Martin pleaded guilty to being a felon in possession of a firearm, with two prior convictions.  One, everyone agreed, was a crime of violence and made his base offense level at least 20.  The Government argued that the other, a 2009 conviction in Maryland for fourth-degree burglary, was, too, and bumped Martin's base offense level to 24.  The district court agreed and sentenced Martin to the bottom of the resulting Guideline range.

On appeal, a divided Fourth Circuit reversed, concluding that the 2009 conviction was not a crime of violence.  The court first noted that the Maryland conviction did not have an element involving physical force.  It also concluded that it was not a "burglary of a dwelling," even though a dwelling was involved, because it did not match the generic elements of burglary set out by the Supreme Court because it did not require the intent to commit  a crime when making the unlawful entry.  Therefore, the court moved on to the inquiry of whether the 2009 conviction "otherwise involves conduct that presents a serious potential risk of physical injury to another."  Which is where it got complicated.

The court first looked to the Supreme Court's decision in Begay (2008), which emphasized the need to analyze the conviction in question to determine whether it was similar in kind as well as the degree of risk posed by the enumerated offenses.  However, it noted that the Supreme Court in Sykes (2011) emphasized the degree of risk analysis over all else.  Martin argued Begay's two-step analysis applied, while the Government argued that Sykes limited the two-step analysis to only crimes that were akin to strict liability offenses.  Noting that, while some Circuits have gone the route urged by the Government, the Fourth Circuit has continued to employ Begay will full force, the court proceeded to the two-step analysis.  Ultimately, it concluded that the 2009 conviction posed a similar degree of risk to generic burglary, but lacked the "purposeful" conduct of the enumerated offenses.  Therefore, the offence of fourth-degree burglary in Maryland is not a crime of violence for career offender purposes.

Judge Diaz concurred, explaining that if he was "writing on a cleaner slate," he would have ended the analysis after concluding that the 2009 offense posed a similar risk to generic burglary.  District Judge O'Grady dissented, arguing that the post-Sykes law in the Fourth Circuit is not so definitive and that only the degree of risk analysis is needed.  Nevertheless, he goes on to argue that even under the Begay two-step approach, the 2009 conviction is a crime of violence.

Notably, both Diaz and O'Grady point out that next term the Supreme Court will again return to this issue (in an ACCA case involving a sawed-off shotgun) and, perhaps, provide some more clarity in this area.