More More on What’s a Divisible Statute Under Descamps: An Application of Last Week’s Post to the Offense of Burglary

April 22, 2014
By Hanging Out with Carl Gunn


  • The California and Nevada burglary statutes have already been held non-divisible under Descamps and thus not subject to the modified categorical approach.
  • Case law has interpreted the Arizona burglary statute to be like the Nevada and California statutes, so it should be found to be non-divisible for the same reasons.
  • There are good arguments for arguing the Oregon and Washington burglary statutes are non-divisible as well.


The scorecard’s mounting on the burglary statutes that are falling as non-divisible under Descamps. Descamps itself, of course, held that the California burglary statute was non-divisible and so not subject to the modified categorical approach. The government recently conceded the same result as to the Nevada burglary statute, which is just like the California burglary statute in requiring just an “entry” rather than an “unlawful entry.” See United States v. Edwards, 734 F.3d 850, 853-54 (9th Cir. 2013). And the Arizona statute should follow soon for the same reason. While the Arizona statute does contain the language, “unlawful entry,” that language has been construed to require only an intent at the time of entry to do something unauthorized, not an entry which is itself unlawful.See State v. Belcher, 776 P.2d 811, 812 (Ariz. App. 1989), cited in United States v. Bonat, 106 F.3d 1472, 1475 (9th Cir. 1997). As the Ninth Circuit recognized in Bonat, this “expand[s] the statute beyond generic burglary.” Id. at 1475. And since the entry element isn’t in the form of any list of alternatives, it’s not “divisible” under Descamps. The further holding in Bonat – that the court could move on to the modified categorical approach to try to save an Arizona burglary conviction – is no longer good law in light of Descamps’s divisibility requirement.

Our friends in the Pacific Northwest (where I’ll be traveling soon) may have ways to attack their burglary convictions as well. The burglary statutes in both Oregon and Washington do require an “unlawful entry” (or remaining, which is also sufficient to satisfy the federal definition), but they define “building” in a grossly broad way. Oregon includes “in addition to [building’s] ordinary meaning . . . any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodations of persons or for carrying on business therein.” Or. Rev. Stat. § 164.205(1). Washington goes even further and defines “building” to include “in addition to its ordinary meaning, . . . any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale, or deposit of goods.” Wash. Rev. Code § 9A.04.110(5). This Washington definition of “building” was expressly held to be overbroad in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), see id. at 972 (noting, as examples, that fenced areas, railway cars, and cargo containers are not within generic federal definition’s element of “building or structure”), and the Oregon definition was held to be overbroad in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), see id. at 850 (emphasizing inclusion of booth, vehicle, boat, and aircraft).

These statutes aren’t as obviously non-divisible as the California, Nevada, and Arizona statutes, since the “building” element does have a list of alternatives. But there are two strong arguments you can make about why they’re not divisible despite this. First, think about arguing that the list of different types of buildings in the Oregon and Washington statutes are alternative “means” of committing the same crime, not alternative crimes. In other words, unlawfully entering a booth, or a fenced area, or a railway car, with intent to commit a crime is just a different way of committing the same burglary crime that’s committed when someone unlawfully enters a house or a store. This is arguably suggested simply by the text of the statutes, as Judge Panner of the District of Oregon suggested about the Oregon statute inUnited States v. Snyder, ___ F. Supp. 2d ___, 2014 WL 1099062 (D. Or. Mar. 11, 2014). See id. at *3 (“opining that “[t]he text of the Oregon burglary statute indicates that ‘building’ is a single element”). It is also suggested by the absence of a unanimity requirement for the type of building that is (1) in the case of Oregon, suggested by the model Oregon jury instruction, see Snyder, 2014 WL 1099062, at *3, and (2) in the case of Washington, suggested by case law establishing a general rule that juries do not need to unanimously agree on one of the alternatives in a “definition statute,” State v. Linehan, 56 P.3d 542, 546 (Wash. 2002). (Thanks to former LA DFPD Davina Chen for finding this case law and suggesting this argument.)

There’s a second argument to make as well. It follows from the reasoning of Descamps that a listing of alternatives doesn’t satisfy the divisibility requirement and create separate crimes if the list is only illustrative, i.e., it’s followed by something like – to use Descamps’s weapons hypothetical, see id., 133 S. Ct. at 2289 – “any other weapon.” If the statute ends with some catch-all phrase like this, it’s no better than a statute that simply says “any weapon” to start with. Both the Fourth Circuit and Eleventh Circuit have made precisely this point in post-Descamps cases in those circuits. The Fourth Circuit, in United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013), considered an element of an aggravated assault offense labeled “aggravation” that had been defined in case law to “include: use of a deadly weapon, infliction of serious bodily injury, intent to commit a felony, disparity in age, physical condition, or sex, indecent liberties, purposeful infliction of shame, resistance of lawful authority,and others.” Id. at 333 (emphasis added). The Fourth Circuit held that these had to be characterized as alternative means because it was a “list of circumstances of aggravation [that] is non-exhaustive.” Id.

In a case even more closely on point – United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) – the Eleventh Circuit considered a statute that defined “building” as “[a]ny structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods and then listed various specific things that “such term includes.” Id. at 1348 (quoting Ala. Code § 13A-7-1(2)). The court held that this sort of list was just “a non-exhaustive list of things that fall under th[e] definition” and that the statute was not divisible, because “illustrative examples are not alternative elements.” Id.

The only difference between the Alabama statute considered inHoward and the Oregon and Washington statutes is that the Oregon and Washington statutes put the general catch-all term at the end. Where the Alabama statute considered in Howardstarts with the general “any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods” and then lists specific things that are included, the Oregon and Washington statutes start with the specific things and then add the general “other structure adapted for overnight accommodations of persons or for carrying on business therein,” Or. Rev. Stat. § 164.205(1), or “any other structure used for lodging of persons or for carrying on business therein, or for the use, sale, or deposit of goods,” Wash. Rev. Code § 9A.04.110(5). All three statutes include any “other structure” that satisfies the general requirement, phrased in slightly different ways, of use for lodging and/or business. The only difference is that the general “other structure” clause follows the illustrative examples in the Oregon and Washington definitions where it precedes the illustrative examples in the Alabama statute.

So here in the Ninth Circuit, we have good challenges to the use of burglary statutes in more than half our states. Sorry to leave out our friends in Alaska, Montana, Idaho, and Hawaii, but feel free to chime in through the comment option below if a similar argument works in your state.