United States District Court, D. Delaware
C. Weiss, Acting U.S. Attorney, and Whitney C. Cloud,
Assistant U.S. Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wilmington, DE Attorneys for Plaintiff.
A. Bostic, Federal Public Defender, Eleni Kousoulis,
Assistant Federal Public Defender, and Tieffa N. Harper,
Senior Litigator, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Wilmington, DE Attorneys for Defendant.
U.S. District Judge
February 4, 2016, a federal jury convicted defendant Aleem
Shabazz ("Shabazz") of four felony counts, relating
to straw purchases and unlawful possession of firearms.
(See D.I. 53) The parties disputed whether
Shabazz's previous convictions under Delaware's
second-degree burglary statute subject him to a 15-year
mandatory minimum sentence under the Armed Career Criminal
Act, 18 U.S.C. § 924(e) ("ACCA" or the
"Act"). The parties submitted several rounds of
briefs on the issue (see D.I. 72, 74, 78, 82, 83,
86), and the Court heard oral argument on April 6, 2017
(see D.I. 81 ("Tr.")) and August 29, 2017
(see D.I. 87 ("Aug. Tr.")).
conclusion of the August hearing, the Court ruled from the
bench that ACCA does not apply. The Court indicated that it
would issue a written opinion further articulating its
reasoning. (See Aug. Tr. at 31-34) This is that
2010, a Delaware state grand jury indicted Shabazz on a
number of felony charges stemming from his involvement in a
series of residential burglaries in Wilmington, Delaware.
(See D.I. 72-4) On September 20, 2010, Shabazz pled
guilty to, among others, Counts I, VIII, and XV, which
comprised three charges of second-degree burglary.
(See D.I. 72-6) Shabazz spent a little under three
years incarcerated before being released on probation.
(See D.I. 73 at 10, 24) As a convicted felon,
Shabazz could no longer lawfully possess firearms or
ammunition. See 18 U.S.C. § 922(g).
April 28, 2015, a federal grand jury returned an indictment
charging Shabazz with six felony counts. (See D.I.
2) In February 2016, after a four-day trial, a jury found
Shabazz guilty of illegally possessing a gun and ammunition,
and aiding and abetting straw purchases of firearms, in
violation of 18 U.S.C. §§ 922(a)(6) and (g)(1).
(See D.I. 53) In preparation for sentencing, the
probation office provided the Court and the parties with a
Presentence Investigation Report ("PSR"). (See,
e.g., D.I. 73) Based on Shabazz's 2010 second-degree
burglary convictions, the PSR classified Shabazz as an armed
career criminal subject to 18 U.S.C. § 924(e) and USSG
§ 4B 1.4(a), concluding that, therefore, the Court had
to impose at least the ACCA mandatory minimum sentence of 180
months. (See D.I. 73 at 9, 24)
objected under Federal Rule of Criminal Procedure 32(f) to
the PSR's application of ACCA. (See D.I. 70) The
parties submitted an initial round of briefs (see
D.I. 72, 74, 78) and the Court heard oral argument
(see Tr.). The Court then continued Shabazz's
sentencing hearing, allowed the parties to submit
supplemental briefing, and heard additional argument.
(See D.I. 82, 83, 86; Aug. Tr.) After carefully
considering counsel's arguments, the Court informed the
parties at the end of the August 29, 2017 hearing that it
would sustain Shabazz's objection, and consequently would
not apply ACCA in this case.
924 of Title 18 of the United States Code reads, in relevant
[A] person who violates section 922(g) of this title and has
three previous convictions ... for a violent felony . . .,
committed on occasions different from one another, . . .
shall be . . . imprisoned not less than fifteen years.
18 U.S.C. § 924(e)(1). The statute further provides that
certain offenses "punishable by imprisonment for a term
exceeding one year" - including "burglary" -
qualify as "violent felon[ies]" under the Act. 18
U.S.C. § 924(e)(2)(B)(ii).
Supreme Court has instructed that a prior offense cannot
qualify as a "violent felony" under the Act unless
its elements are "the same as, or narrower than"
the elements of the "generic" versions of the
enumerated offenses. Mathis v. United States, 136
S.Ct. 2243, 2247 (2016). To make that determination, courts
apply the so-called "categorical approach, " which
focuses solely on comparing the elements of the particular
crime of conviction with those of its generic counterpart.
Id. at 2248. Crimes that punish a broader range of
conduct than the "generic" offense are disqualified
from being considered violent offenses. Id. The
actual facts underlying a given conviction are irrelevant.
See Id. at 2251 ("How a given defendant
actually perpetrated the crime - what we have referred to as
the underlying brute facts or means of commission - makes no
difference; even if his conduct fits within the generic
offense, the mismatch of elements saves the defendant from an
ACCA sentence.") (internal quotation marks and citation
a single criminal statute will effectively define multiple
offenses that address varying conduct by setting out
alternative elements. For these "divisible"
crimes, courts are permitted to examine a "limited class
of documents" to determine "what crime, with what
elements, a defendant was convicted of."
Mathis, 136 S.Ct. at 2249. Under this "modified
categorical approach, " courts then compare that
specific set of elements with the corresponding
"generic" offense. Id.
government can show three convictions for violent felonies
"committed on occasions different from one another,
" ACCA imposes a mandatory minimum sentence of 15 years
of incarceration. 18 U.S.C. § 924(e)(1). The U.S.
Sentencing Guidelines also provide a minimum baseline offense
level of 33 for defendants subject to ACCA. See U.S.
Sentencing Guidelines Manual § 4B 1.4(b)(3) (U.S.
Sentencing Comm'n 2016).
on Shabazz's three Delaware convictions for burglary in
the second degree, the government argues the Court must apply
ACCA and sentence Shabazz to the mandatory minimum 15-year
term. Shabazz makes three principal arguments in response. He
first questions whether the record allows the Court to
determine which subsection of the second-degree burglary
statute he was convicted of violating. He further contends
that the government has failed to prove that the relevant
convictions were for offenses committed on three separate
occasions. Finally, he argues that his burglary convictions
are not ACCA "violent felonies" because they do not
fit within the definition of "generic" burglary.
After addressing the preliminary issue of whether
Delaware's second-degree burglary statute is divisible,
the Court will address each of Shabazz's
Is the Relevant Statute Divisible?
was charged with - and ultimately pled guilty to - violating
Title 11, Section 825 of the Delaware Code ("§
825"). (Compare D.I. 72-4 at Counts I, VIII,
and XV with D.I. 72- 72-6) That statute provides, in
person is guilty of burglary in the second degree when the
person knowingly enters or remains unlawfully:
(1) In a dwelling with intent to commit a crime therein; or
(2) In a building and when, in effecting entry or while in
the building or in immediate flight therefrom, the person or
another participant in the crime:
a. Is armed with explosives or a deadly weapon; or
b. Causes physical injury to any person who is not a
participant in the crime.
11 Del. C. § 825(a). The government contends that §
825(a) is divisible, while also conceding that §
825(a)(2) cannot form an ACCA predicate offense. (D.I. 72 at
5) The government contends that Shabazz violated §
825(a)(1) on three separate occasions
and is, therefore, subject to ACCA's mandatory
agrees that § 825(a)(2) cannot support an ACCA
enhancement. He further suggests that the question of
divisibility is essentially moot, based on his assertion that
§ 825(a)(1) does not qualify as ACCA predicate either.
(See D.I. 74 at 8 (modified categorical approach
appropriate "only when a statute defines burglary not. .
. overbroadly, but instead alternatively, with one statutory
phrase corresponding to the generic crime and another
not") (quoting Descamps v. United States, 133
S.Ct. 2276, 2286, (2013)); see also Id. at 14) In
other words, Shabazz would have the Court find that neither
subsection qualifies as an ACCA predicate and stop there.
Court concludes that subsections (1) and (2) define two
separate criminal offenses with different elements; they do
not "enumerate various factual means of committing a
single element" of a single offense. Mathis,
136 S.Ct. at 2249. Section 825(a) is, therefore, potentially
Does the Record Establish Convictions for a Specific