June 5, 2014 4th Circuit published opinion

United States v Martin

Martin appealed his sentence for felon in possession of a firearm arguing he was wrongly characterized as a career criminal. The panel, 2-1, vacated and remanded. The majority held that Martin’s Maryland burglary conviction was not a crime of violence under the categorical approach as there was no force or violence element and was not generic burglary as there was requirement of an intent to commit a crime when entering the premises. The majority held that both the degree of risk and similarity in kinds tests had to be satisfied for the conviction to satisfy the residual clause of the guidelines. It held that the conviction qualified under the degree of risk test as the same risk of violent confrontation existed as in the generic burglary context. However, the conviction failed to he similar in kind test because the Maryland statute in question can be violated through negligent conduct and the guideline requires purposeful conduct. The case was remanded for resentencing. One member of the majority added a concurrence noting the law of the residual clause is a mess, it is unclear that the similar in kinds test even applies here, but, because it could apply, circuit precedent requires that it be applied and the burglary conviction does not meet it. The dissent argued that the similar in kind test did not apply because the Maryland statute required knowing violation but if it applied the knowledge requirement and the fact that the statue will typically be violated in knowing, not negligent, manner means the test is satisfied. It also called fro Congress or the Supreme Court to bring clarity to the residual clause.

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