Continuing last week's conversation about generic burglary and ACCA, from Carl:
Well, Kirk, here’s one idea I have so far (also kudos to Tom for citing one of my first appellate victories). In Shepard v. United States, 544 U.S. 13, 15-16 (2005), the Supreme Court stated that the ACCA “makes burglary a violent felony only if committed in a building or enclosed space (‘generic burglary’), not in a boat or motor vehicle.” Thus, generic burglary for the ACCA now is: an unlawful or unprivileged entry into, or remaining in, a building or enclosed space (not in a boat or motor vehicle), with intent to commit a crime. See United States v. Silva, 608 F.3d 663 (10th Cir. 2010). But Kansas law allows burglary of a “building” to include spaces that are not “enclosed” and not really buildings.
In State v. Storey, 286 Kan. 7 (2008), the Kansas Supreme Court held that an unsecured, unfinished medical facility that was under construction was a “building,” within meaning of burglary of non-dwelling in K.S.A. 21-3715(b) (repealed). The court specifically rejected Storey’s argument that the term “building” in K.S.A. 21-3715(b) (repealed) required an “enclosed space.” Storey, 286 Kan. at 11-16. Thus, under Kansas case law, the burglary of a non-dwelling in K.S.A. 21-3715(b) (repealed) appears to prohibit the burglary of things that are beyond a “building or enclosed space.”
So there is an argument that the older Kansas burglary statute (discussed in Storey) proscribes a range of conduct that is broader than generic burglary. And the word “building” in the statute is not really all that divisible. See, e.g., United States v. Beltran-Rivera, 670 F. Supp. 2d 1207, 1213 (D. N.M. 2009) (using the categorical approach to hold that an aggravated burglary conviction under K.S.A. 21-3716 (repealed) was not a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)). Thus, the categorical approach must be used. Descamps v. United States, 133 S. Ct. 2276, 2285 (2013). This would make all burglary convictions under K.S.A. 21-3715(b) (repealed) incompatible with the ACCA’s generic definition of burglary, and thus unable to serve as ACCA predicates. More on other fun burglary arguments later.