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Friday, April 20, 2007

James: Florida Attempted Burglary is Violent Felony

In James v. U.S., No. 05-9264 (April 18, 2006), the Supreme Court held that the offense of attempted burglary, as defined by Florida law, qualifies as a "violent felony" for purposes of the 15-year mandatory minimum of 18 U.S.C. § 924(e).
The Court noted that the statutory definition of "violent felony" did not exclude attempt offenses. The Court further noted that the list of enumerated offenses which qualified as a "violent felony" was not exhaustive. Hence, the issue of whether attempted burglary under Florida law qualified as a "violent felony" depended on whether it "involves conduct that presents a serious potential risk of physical injury to another."
The Court found that the Florida Supreme Court’s decision interpreting the attempted burglary statute made it clear that merely preparatory activity, such as acquiring burglars’ tools or casing a structure, is not enough to be guilty of the offense. An overt act is required. This overt act poses a risk akin to the risk posed by a completed burglary. The main risk of burglary arises not from the simple physical act of wrongfully entering another’s property, but from the possibility that an innocent person might confront the burglar during the crime. Attempted burglary poses the same kind of risk.
The Court rejected James’ reliance on Taylor v. U.S., 495 U.S. 575 (1990). Taylor did not require an offense to present a risk of physical injury to others in every case, but only in "the ordinary case."
Finally, the Court held that even if Florida law defines burglary to encompass a dwelling to include not only a structure but the curtilage thereof, and therefore does not involve entry into a structure, the risk posed by attempted burglary still qualified under § 924(e). A typical reason for enclosing the curtilage adjacent to a structure is to keep out unwanted visitors – especially those with criminal motives. Thus, an attempted entry poses a risk of physical injury.
those with criminal motives. Thus, an attempted entry poses a risk of physical injury.