United States of America v. Joshua Bolin

NOT RECOMMENDED FOR PUBLICATION
File Name: 19a0351n.06
No. 18-5842
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA BOLIN,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
BEFORE: ROGERS, BUSH, and LARSEN, Circuit Judges.
ROGERS, Circuit Judge. Joshua Bolin was convicted of being a felon in possession of
firearms under 18 U.S.C. § 922(g)(1). The district court determined he was an Armed Career
Criminal under 18 U.S.C. § 924 because he had numerous prior convictions for Kentucky second-
degree burglary. On appeal, Bolin challenges his ACCA enhancement on the ground that
Kentucky second-degree burglary is broader than the generic offense of burglary and therefore is
not categorically a “crime of violence” under the ACCA’s enumerated offenses clause.
Alternatively, he contends that Kentucky second-degree burglary is divisible, and therefore his
case should be remanded to the district court to determine which variety of Kentucky second-
degree burglary he committed. These challenges fail, however, because Kentucky second-degree
burglary—in all its forms—is categorically a crime of violence.

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No. 18-5842, United States v. Bolin
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As this court held in United States v. Malone, 889 F.3d 310 (6th Cir. 2018), cert. denied,
139 S. Ct. 1323 (2019), Kentucky second-degree burglary is not broader than the generic offense.
889 F.3d at 313. Bolin contends that Malone was wrongly decided, but we are bound by that
published holding. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.
1985). Moreover, Bolin’s only argument as to why Malone was incorrect has now been addressed
by the Supreme Court, and not in Bolin’s favor. Bolin contends that Kentucky second-degree
burglary covers “remaining in” burglary, where a person lawfully enters a building but then
remains there unlawfully, and that such “remaining in” burglary is broader than the generic
burglary Congress was thinking of when it enacted the ACCA. In Quarles v. United States, 139
S. Ct. 1872 (2019), the Supreme Court unanimously held that remaining-in burglary was a generic
burglary. 139 S. Ct. at 1880. Thus, even if Kentucky second-degree burglary covers remaining-
in burglary it is not overbroad.
Quarles not only disposes of Bolin’s primary argument, but it also dooms his alternative
divisibility challenge. Bolin contends that Kentucky second degree burglary is divisible and so
we must remand for the district court to determine which variety of Kentucky second degree
burglary Bolin committed (ten times). Even if he is correct as to divisibility, see United States v.
Slaughter, 751 F. App’x 659, 663–64 (6th Cir. 2018), that does not require a remand because the
alternate variety of Kentucky burglary relied upon by Bolin is remaining-in burglary. After
Quarles, it is clear that both varieties of Kentucky second-degree burglary fall within the generic
offense of burglary.
The judgment of the district court is affirmed.

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