United States of America v. Jimmy David Malone

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0088p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
J IMMY D AVID M ALONE ,
Defendant-Appellant.
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No. 17-5727
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:16-cr-00058-1—Thomas A. Varlan, Chief District Judge.
Argued: April 26, 2018
Decided and Filed: May 8, 2018
Before: GUY, SUTTON, and COOK, Circuit Judges.
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COUNSEL
ARGUED: Robert R. Kurtz, STANLEY & KURTZ, PLLC, Knoxville, Tennessee, for
Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville,
Tennessee, for Appellee. ON BRIEF: Robert R. Kurtz, STANLEY & KURTZ, PLLC,
Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
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OPINION
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COOK, Circuit Judge. This appeal presents the latest episode in the saga of determining
whether a prior conviction is a “violent felony” for purposes of the Armed Career Criminal Act’s
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sentencing enhancement. Guided by canons of statutory construction, we hold that Kentucky
second-degree burglary categorically qualifies as generic burglary under the ACCA and
AFFIRM the sentence.
I.
Knoxville police pulled over Jimmy Malone for driving with unlit taillights. But his
lights were the least of his worries. The handgun found under Malone’s seat prompted a federal
grand jury indictment on felon-in-possession charges. See 18 U.S.C. § 922(g)(1). A witness-
intimidation charge came later after Malone bade his sister lie to officers about who bought the
gun. See id. § 1512(b)(1). He pleaded guilty to all counts.
The Presentence Report classified Malone as an armed career criminal under the ACCA
based on three prior convictions for “violent felonies” or “serious drug offenses”—Tennessee
aggravated assault, federal drug trafficking, and Kentucky second-degree burglary. See
id. § 924(e). He contested the classification, arguing only that his Kentucky conviction was
incorrectly considered an ACCA predicate offense because the crime’s elements are broader than
generic burglary’s. Overruling Malone’s objection, the district court sentenced him to the
ACCA-minimum 15 years’ imprisonment for violating § 922(g). See id.
Malone appeals the determination that his Kentucky second-degree burglary conviction
qualifies as an ACCA “violent felony.” We review the issue de novo. United States v. Johnson,
707 F.3d 655, 658 (6th Cir. 2013).
II.
The ACCA enumerates burglary as one of several “violent felonies” that can enhance a
defendant’s felon-in-possession sentence. 18 U.S.C. §§ 924(e)(1), (e)(2)(B)(ii). For the
ACCA’s purposes, however, not all burglaries are created equal. A state burglary offense
constitutes “burglary” under the ACCA if the state burglary statute describes the “generic”
version of the crime. Descamps v. United States, 570 U.S. 254, 257 (2013). Generic burglary
“contains at least the following elements: an unlawful or unprivileged entry into, or remaining in,
a building or other structure, with intent to commit a crime.” Taylor v. United States, 495 U.S.

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No. 17-5727 United States v. Malone Page 3
575, 598 (1990). Applying a “categorical approach,” we focus “on whether the elements of the
crime of conviction sufficiently match the elements of generic burglary.” Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016).
In Kentucky, “[a] person is guilty of burglary in the second degree when, with the intent
to commit a crime, he knowingly enters or remains unlawfully in a dwelling.” Ky. Rev. Stat.
§ 511.030(1). Here is the corresponding definitions section in full:
The following definitions apply in this chapter unless the context otherwise
requires:
(1) “Building,” in addition to its ordinary meaning, means any structure,
vehicle, watercraft or aircraft:
(a) Where any person lives; or
(b) Where people assemble for purposes of business, government,
education, religion, entertainment or public transportation.
Each unit of a building consisting of two (2) or more units separately secured or
occupied is a separate building.
(2) “Dwelling” means a building which is usually occupied by a person
lodging therein.
(3) “Premises” includes the term “building” as defined herein and any real
property.
Id. § 511.010.
The parties disagree about the upshot of Kentucky’s definition of “dwelling.” Malone
contends that the statutory definition of “dwelling” directs to the statutory definition of
“building.” Given that “building” encompasses vehicles and movable enclosures, his argument
goes, he relies on Mathis and insists that § 511.030 is broader than generic burglary. See Mathis,
136 S. Ct. at 2250 (explaining that Iowa’s burglary statute “covers more conduct than generic
burglary” because it “reaches a broader range of places: ‘any building, structure, [or] land,
water, or air vehicle’” (citation omitted, alterations in original)).
No, the Government contends, this is not the proper interpretation. That’s because of the
statutory definition of “premises”—it references “‘building’ as defined herein.” Ky. Rev. Stat.
§ 511.010(3) (emphasis added). According to the Government, that “[t]he definition of

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No. 17-5727 United States v. Malone Page 4
‘dwelling’ includes no such qualifier . . . signals that it refers to a ‘building’ in its ordinary
sense” instead of its definitional one.
The district court agreed with the Government’s interpretation, and so do we. Malone’s
proposal runs afoul of the “cardinal principle of statutory construction that a statute ought, upon
the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be
superfluous, void, or insignificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quotation
marks and citations omitted); see also Daniel v. Cantrell, 375 F.3d 377, 383 (6th Cir. 2004)
(“We avoid interpretations of a statute which would render portions of it superfluous.”). In
defining “premises,” the legislature explicitly references the statutory definition of “building” by
using the qualifier “as defined herein.” Ky. Rev. Stat. § 511.010(3). Not so in its definition of
“dwelling”—the “as defined herein” limiter is absent, as are the quotation marks punctuating the
word “building.” Id. § 511.010(2). We presume these variations meaningful and deliberate; we
will not adopt an interpretation neutralizing them. See Russello v. United States, 464 U.S. 16, 23
(1983) (“[W]here Congress includes particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” (citation omitted, alteration in original));
United States v. Detroit Med. Ctr., 833 F.3d 671, 678 (6th Cir. 2016) (applying Russello’s
instruction).
The statutory definition of “building” lends further support to the Government’s
interpretation. “Building” includes, “in addition to its ordinary meaning, . . . any structure,
vehicle, watercraft or aircraft” where a person lives or assembles. Ky. Rev. Stat. § 511.010(1)
(emphasis added). So “building” ordinarily means something different than its statutory
definition. This makes sense, given that “premises” specifically incorporates “‘building’ as
defined herein” but “dwelling” does not. Compare id. § 511.010(3) (emphasis added), with
id. § 511.010(2).
The conclusion we must draw from these distinctions is that “dwelling” incorporates only
the “ordinary meaning” of “building.” See Sanders v. Allison Engine Co., Inc., 703 F.3d 930,
938 (6th Cir. 2012) (cautioning that, because “there is no irrebuttable presumption of uniform
usage” when a term is given a statutory definition, “a court should not presume that a term

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defined by statute carries the same meaning every time it is used in a statute”). Construing the
interplay between the definitions of “building,” “dwelling,” and “premises” differently would
render portions of § 511.010 meaningless. And just as revising a statute by addition is outside
our province, so too is revising by subtraction.
What’s more, caselaw corroborates this conclusion. The Government identifies two
Kentucky Supreme Court decisions “confirm[ing] that the definition of ‘dwelling’ uses the term
‘building’ in its ordinary sense.” One, Soto v. Commonwealth, states that the statutory
definitions of “building” and “dwelling” “indicat[e] that ‘building’ encompasses a broader
category of structures than ‘dwelling.’” 139 S.W.3d 827, 869 (Ky. 2004). The other, Colwell v.
Commonwealth, concludes per the statutory definitions that “every dwelling is a building, but
every building is not a dwelling.” 37 S.W.3d 721, 726 (Ky. 2000). These mesh well with the
Government’s interpretation—“dwellings” are “buildings” in the ordinary sense, not the
definitional sense, and so “buildings” in the definitional sense are not necessarily “dwellings.”
Plus, we have consistently held that a conviction under § 511.030 ticks the ACCA’s “violent
felony” box as an enumerated offense. See United States v. Jenkins, 528 F. App’x 483, 485 (6th
Cir. 2013) (stating that “[t]he elements of second-degree burglary in Kentucky largely track th[e]
definition” of burglary advanced by the Supreme Court in Taylor, and that “a statute that limits
its proscription to ‘dwellings’” satisfies the ACCA’s enumerated-offenses clause); United States
v. Walker, 599 F. App’x 582, 583 (6th Cir. 2015) (mem.) (citing Jenkins to note that Kentucky
second-degree burglary “is equivalent to the crime of burglary enumerated in the [ACCA]”); see
also United States v. Moody, 634 F. App’x 531, 534 (6th Cir. 2015) (concluding that a Kentucky
second-degree burglary conviction constitutes a crime of violence for a career-offender
enhancement under the Sentencing Guidelines).
III.
Because a “dwelling” is a “building” only in the ordinary sense, § 511.030’s elements—
knowingly entering or remaining unlawfully, in a “dwelling,” with the intent to commit a
crime—match generic burglary’s. See Descamps, 570 U.S. at 257; Taylor, 495 U.S. at 598.
That the Supreme Court recently granted certiorari to consider whether generic burglary can
include burglary of a mobile structure used for overnight accommodation is beside the point; our

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interpretation of § 511.010 obviates that question in this case. See United States v. Stitt, 860 F.3d
854 (6th Cir. 2017) (en banc), cert. granted, 2018 WL 1901589 (U.S. Apr. 23, 2018) (No. 17-
765). We therefore hold that Kentucky second-degree burglary categorically qualifies as generic
burglary under the ACCA’s enumerated-offenses clause. Malone having three convictions for
ACCA predicates, we AFFIRM his sentence.

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