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When is a burglary not a burglary?

Gregory McLeod pleaded guilty to being a felon in possession of a firearm. The Government sought an enhanced penalty under the Armed Career Criminal Act (ACCA), arguing that Mr. McLeod had at least three prior violent felony convictions, all of which were South Carolina second-degree burglaries. If the Government was right, and the District Court believed it was, Mr. McLeod faced a prison term of fifteen years to life. If Mr. McLeod was right, he faced no more than ten years in prison. The Fourth Circuit doesn’t tell us more about the facts of his offense because what we really care about is what happened in South Carolina state court in 1998.[1]

Mr. McLeod had a total of five convictions for second degree burglary. The District Court found that all five convictions were violent felonies. The indictments in “those cases charged McLeod with breaking and entering a commercial building with the intent to commit a crime.” Seems simple enough, right? But sometimes a state burglary isn’t a federal burglary.

State legislatures write laws like burglary statutes broadly to make sure whatever conduct they are criminalizing covers as many factual scenarios as possible. The South Carolina second-degree burglary therefore outlaws the breaking and entering of a building, but also other “edifices and things.” This means that cars, trucks, boats, and planes are covered by the burglary law.

Federal courts, however, in an effort to find some consistency amongst state court convictions used to enhance federal sentences use a generic definition of burglary that covers only breaking and entering buildings or structures.

Faced with state statutes that don’t line up exactly with federal sentencing law, federal sentencing courts can take two approaches – look at the statute (the categorical approach) or look at the statute and other documents related to the actual crime in the state court conviction (the modified categorical approach). To spare you a trip down the rabbit hole of divisible v. indivisible statutes and Shepard authorized documents, I’ll just generally state that the categorical approach leads to far fewer state court convictions being treated as violent felonies in federal sentencings.[2]

Mr. McLeod’s sentencing court applied the modified categorial approach since the indictments specified that he was charged with “burglary of a building,” which matches the definition of a generic burglary. It had found that since South Carolina second-degree burglary criminalized conduct that could be, but was not always, a generic burglary, it should use the modified categorical approach. The Fourth Circuit agreed with taking that approach, but not its application.

I wasn’t totally honest when I said we would avoid the rabbit hole of which documents a sentencing court can look to in determining whether a prior conviction is a violent crime. Because, although the indictments in the case arguably charged generic burglaries, the guilty plea transcripts showed otherwise. Mr. McLeod’s state court attorney had negotiated four of five of Mr. McLeod’s burglary convictions down to the non-violent burglary of a dwelling. Under South Carolina law, a dwelling is can be anything where a person sleeps, lives, or lodges – including vehicles, planes, or boats that fall outside of the definition of a generic burglary.

Mr. McLeod’s 1998 burglary convictions were not generic burglaries even though they were charged as them. What matters isn’t that crime Mr. McLeod was charged with or even the facts of those cases. If they did, his four commercial burglaries would certainly have been violent felonies. What matters is the “crime of conviction,” which in this case was not a violent felony.

The Government was completely blind to this distinction because it “devoted its brief to McLeod’s purported violations of [a code section addressing violent burglary], as charged in the indictments,” and only addressed the issue that the case turned on in a footnote.

The Fourth Circuit’s holding touched on a number of issues relating to state court prior convictions. But, the big takeaway is that anytime you have a state court prior conviction that may or may not be crime of violence, get your hands on as many documents as you can. Mr. McLeod will be serving at least 68 months fewer because his trial attorney tracked down the 1998 plea transcripts and his appellate attorney included them in an appendix supplement filed after the case was fully briefed.

Andrew Szekely is a Greenbelt-based criminal defense attorney with a practice specializing in federal criminal defense and serious state-court crimes in Maryland and the District of Columbia. He also maintains an active appellate, post-conviction, and habeas corpus practice. For more information, please see his website.


  1. Mr. McLeod also challenged his conviction based on the Government’s failure to allege the sentencing enhancement in his federal indictment. That did not get him far with the Fourth Circuit, which rejected the claim in a few paragraphs.  ↩
  2. If you want to know what gives even the most experienced federal criminal defense attorneys headaches, this is it.   ↩