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Criminal Practice – No ACCA Enhancement for Prior Burglaries

U.S. v. White (Lawyers Weekly No. 001-142-16, 25 pp.) (Wynn, J.) No. 15-4096, Sept. 9, 2016; USDC at Charleston, W.Va. (Johnston, J.) 4th Cir.

Holding: A defendant convicted of firearm possession as a felon cannot be sentenced as an armed career criminal, as his prior West Virginia burglary convictions are not ACCA-qualifying predicate crimes under the new U.S. Supreme Court decision in Johnson v. U.S., 135 S. Ct. 2551 (2015); the 4th Circuit affirms denial of defendant’s suppression motion but vacates his sentence and remands for resentencing.

Suppression Motion

The trial court concluded that reasonable suspicion supported a police officer’s initial decision to stop the car in which defendant was a passenger because the driver veered into another lane. The court said the officer could extend the stop after smelling marijuana, and had probable cause to search the passenger compartment of the car, where the firearm was discovered.

Defendant does not challenge the initial basis for the traffic stop; it is undisputed that the officer observed the vehicle veer out of its lane prior to the stop. However, defendant contends that once the officer determined the driver was not intoxicated or otherwise impaired, the stop should have ended.

This court has repeatedly held that the odor of marijuana alone can provide probable cause to believe that marijuana is present in a particular place. Here, the officer smelled the odor of burned marijuana when he first approached the car. He testified unequivocally that he smelled burned marijuana, and his subsequent actions – inquiring with the car’s occupants concerning marijuana and requesting a canine sniff – corroborate his statement.

The trial court did not err in denying the suppression motion.

Change in Law

In Johnson, decided during the pendency of this appeal, the Supreme Court held that the ACCA’s residual clause is unconstitutionally vague and therefore violates due process.

As a preliminary matter, we address the government’s argument that defendant has abandoned the opportunity to appeal his sentence because defendant raised the issue for the first time in supplemental briefing, rather than in his opening brief.

Our unpublished decisions indicate that we have routinely allowed – and even requested – supplemental briefing on new arguments or claims when an intervening court decision upends precedent relevant to an appeal. Also, common sense dictates that an appellant can only “abandon” an argument that was actually available to him. We therefore hold that when an intervening decision of this court or the Supreme Court affects precedent relevant to a case pending on direct appeal, an appellant may timely raise a new argument, case theory or claim based on that decision while his appeal is pending without triggering the abandonment rule.

Burglary Convictions

Defendant contends that the West Virginia burglary statute sweeps more broadly than generic burglary because it covers enclosures other than “buildings” or “structures.” We agree. The statutory definition in W.Va. Code § 61-3-11(a) includes “vehicles” and a “self-propelled motor home.” In criminalizing burglary of a dwelling home, the West Virginia burglary statute encompasses conduct that is excluded from the definition of generic burglary.

Because W. Va. Code § 61-3-11(a) criminalizes burglary of a “dwelling house,” a term that reaches enclosures excluded from generic burglary’s building or structure element – defendant’s prior burglary convictions do not qualify as the ACCA enumerated offense of “burglary” under the categorical approach.

We conclude that defendant’s prior West Virginia burglary convictions do not meet the ACCA definition of a “violent felony,” and the district court thus erred in enhancing defendant’s sentence under the ACCA. The error at issue is plain and clearly affected defendant’s substantial rights by compelling a five-year increase in his prison term. We exercise our discretion to grant defendant relief.

Affirmed in part, vacated in part and remanded.

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