UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

WILLIAM SPICER,

 CRIMINAL CASE NO. 15-CR-20162

Petitioner, CIVIL CASE NO. 17-CV-10042

v.

 DISTRICT JUDGE THOMAS L. LUDINGTON

UNITED STATES OF AMERICA, MAGISTRATE JUDGE PATRICIA T. MORRIS

Respondent.

/

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON PETITIONER’S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255

(Doc. 60)

I. RECOMMENDATION

For the following reasons, IT IS RECOMMENDED that Petitioner’s Motion Vacate

Sentence (Doc. 60) be DENIED and that the civil case be DISMISSED.

II. REPORT

A. Introduction

On November 24, 2015, Petitioner pleaded guilty to Count 1 of the Superseding Indictment

charging felon in possession of a firearm in violation of 18 U.S.C. §922(g) and 924(e) pursuant

to a plea agreement. (Doc. 49.) On March 14, 2016, judgment was entered and Petitioner was

sentenced to 210 months imprisonment. (Doc. 56.) Petitioner did not file an appeal. On January

3, 2017, Petitioner filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28

U.S.C. § 2255 (Doc. 60.) Petitioner argues that he was erroneously sentenced under the ACCA

because his State of Michigan conviction for breaking and entering an occupied dwelling is not

an enumerated crime of violence. (Doc. 60.) February 10, 2017, Respondent filed a response to the

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motion. (Doc. 65.) Respondent contends that breaking and entering an occupied dwelling does

qualify as an enumerated offense. (Doc. 65.) Petitioner replied, noting his disagreement with the

analysis in the response. (Doc. 68.) This motion is ready for Report and Recommendation without

oral argument. See E.D. Mich. LR 7.1(f)(2).

B. Analysis and Conclusion

Petitioner was sentenced under the ACCA based on three convictions for enumerated

offenses: (1) breaking and entering an occupied dwelling, (2) armed robbery, and (3) delivery of

a controlled substance. (Doc. 49 at ID 212.) It is the conviction for breaking and entering an

occupied dwelling that Petitioner challenges.1

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that the Armed

Career Criminal Act’s (ACCA’s) residual clause, i.e., the clause that defines a “violent felony” to

include an offense that “involves conduct that presents a serious potential risk of physical injury

to another” is unconstitutionally vague and violates due process. 18 U.S.C. § 924(e)(2)(B)(ii). The

Supreme Court has further held that Johnson has retroactive effect in cases on collateral review.

Welch v. United States, 136 S. Ct. 1257, 1265 (2016). 

The Sixth Circuit has held that since the United States Sentencing Guidelines (“USSG”) §

4B1.1 (commonly known as the “career offender enhancement”) also has a residual clause that is

identical in wording to the residual clause in the ACCA, the Johnson rationale applies equally to

the sentencing guidelines residual clause defining a crime of violence. See USSG § 4B1.2(a);

United States v. Pawlak, No. 15-3566, 2016 WL 2802723, at *8 (6th Cir. Mar. 13, 2016).

1

In his reply, Petitioner appears to challenge the armed robbery conviction also. However, Michigan

convictions for armed and unarmed robbery are both considered violent crimes and may be used to enhance a

sentence under the ACCA. United States v. Matthews, No. 15-2298, 2017 WL 1857265 (6th Cir. May 8, 2017). 

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However, the United States Supreme Court in Beckles v. United States, 137 S. Ct. 886 (Mar. 6,

2017), abrogated Pawlak and held that the sentencing guidelines are not subject to a void-forvagueness challenge. Therefore, the residual clause of the career offender sentencing guidelines

remains viable and any claims challenging the guideline must fail.

Johnson concerned the second half of the phrase under the ACCA §924(e)(2)(B)(ii), i.e.,

the residual clause. The residual clause follows a list of enumerated violent felonies under

§924(e)(2)(B)(ii), i.e., “burglary, arson, or extortion, involves the use of explosives.” Mathis v.

United States, 136 S. Ct. 2243 (2016) governs how to interpret whether a state conviction qualifies

under this list of generic offenses. 

Mathis held that, in determining whether a prior state violent felony conviction counts

toward a federal sentence enhancement under the ACCA, courts must apply the categorical

approach - not the modified categorical approach - where a criminal statute establishes various

means for satisfying a single element. Mathisfocuses on the portion of the same subsection of the

ACCA that was not addressed by the Court in Johnson.

The Court in Mathis found that Iowa’s burglary statute had a broader locational element

than generic burglary and thus, the Iowa conviction could not qualify as a prior violent felony

conviction under the ACCA’s enumerated offenses of “burglary, arson, or extortion, involves the

use of explosives.” §924(e)(2)(B)(ii). 

On October 26, 2016, the Sixth Circuit decided United States v. Ritchey, 840 F.3d 310 (6th

Cir. 2016). The Sixth Circuit provided a method for analyzing potential predicate violent crime

convictions used under the ACCA under Mathis and held that a conviction under Mich. Comp.

Laws §750.110, for breaking and entering a building with intent to commit a felony or larceny

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therein, could not qualify as a violent felony under the ACCA since its elements were broader than

those of the generic enumerated offense of burglary. The version of the statute analyzed in Ritchey

states that “[a] person who breaks and enters, with intent to commit a felony or a larceny therein,

a tent, hotel, office, store, shop, warehouse, barn, granary, factoryor other building, structure, boat,

ship, shipping container, or railroad car is guilty of a felony punishable by imprisonment for not

more than 10 years.” Mich. Comp. Laws §750.110. 

The Court explained that “when a statute encompasses circumstances broader than generic

burglary, the district court may look to ‘the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable record of this information’ - commonly referred to as Shepard

documents - to determine whether the defendant ‘necessarily admitted elements of the generic

offense.’ Shepard v. United States, 544 U.S. 13, 26 (2005).” Ritchey, 840 F.3d at 315. This

approach only applies where the statute is truly divisible, i.e., where the statute “‘lists multiple,

alternative elements, and so effectively creates “several different . . . crimes,’” at least one of

which is a generic burglary.” Ritchey, 840 F.3d at 315, citing Descamps v. United States, 133 S.

Ct. 2276, 2285 (2013). If a statutory list is “‘drafted to offer’ illustrative examples, then it includes

only a crime’s means of commission.’” Id. “Only if the record indicates that the listed items are

elements, not alternative means, may the sentencing courts examine the Shepard documents to

determine whether the crime the defendant was convicted of constituted a generic burglary.”

Ritchey, 840 F.3d at 315.

The Court in Ritchey determined that Michigan’s list of locations is a list of means, not

elements. Id. at 320. Therefore, the Court did not consider the charging documents or any other

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Shepard documents, because the Court found the statute was not divisible, i.e., it did not set forth

elements of separate crimes. Thus, the Court held that Ritchey’s conviction for breaking and

entering could not be used as predicate offenses to sentence him under the ACCA. Therefore, the

Sixth Circuit vacated Ritchey’s sentence and remanded for resentencing consistent with its

decision and the United States Supreme Court’s decision in Mathis.

Petitioner relies on Ritchey and argues that his conviction for breaking and entering an

occupied dwelling occurred under a Michigan statute that captures more than just generic burglary,

e.g., breaking and entering a boat. (Doc. 60 at ID 279.) Thus, he argues, the Michigan statute is

broader than the generic version of burglary and cannot qualify as an enumerated crime of

violence, i.e. burglary. Respondent notes that the Court in Ritchey was analyzing a different

version ofthe Michigan statute, which was amended in 1994. Petitioner was charged and convicted

in 1991. Respondent further argues that the earlier version of the Michigan statute that applied to

Petitioner’s conviction is divisible and because Petitioner pleaded guilty to the elements of generic

burglary (as evidenced by examining Shepard documents), Petitioner’s conviction qualifies as a

crime of violence. (Doc. 65 at 3-5.) 

The statute under which Petitioner was charged and convicted, in 1991, was Mich. Comp.

Laws §750.110. At that time, the statute provided:

“Any person who shall break and enter with intent to commit any felony, or any

larceny therein, any tent, hotel, office, store, shop, warehouse, barn, granary, factory

or other building, structure, boat or ship, railroad car or any private apartment in any

of such buildings or any unoccupied dwelling house, shall be guilty of a felony

punishable by imprisonment in the state prison not more than 10 years. Any person

who breaks and enters any occupied dwelling house, with intent to commit any

felony or larceny therein, shall be guilty of a felony punishable by imprisonment in

the state prison for not more than 15 years. For the purpose of this section, “any

occupied dwelling house” includes one that does not require the physical presence

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of an occupant at the time of the breaking and entering but one which is habitually

used as a place of abode.” 

People v. Walters, 186 Mich. App. 452, 454 (Mich. Ct. App. 1990) (quoting the then-current

version of Mich. Comp. Laws §750.110). I suggest that this version of the statute fairly clearly sets

forth two different breaking and entering crimes: one which punishes breaking and entering an

occupied dwelling house with intent to commit a felony or larceny and which punishes breaking

and entering into any other type of structure with intent to commit a felony or larceny. The

punishments for the two different offenses are correspondingly different, with breaking and

entering an occupied dwelling house being punished more severely.

Since the statute does not set forth a list of alternate means but rather two separate and

distinct crimes, this Court may now look to Shepard documents “to determine whether the crime

the defendant was convicted of constituted a generic burglary.” Ritchey, 840 F.3d at 315. In this

case, the information filed by the Midland County Prosecutor’s Office alleged, in Count one, that

Petitioner “did break and enter an occupied dwelling house . . . with intent to commit the crime of

larceny therein; contrary to MCL 750.110.” (Doc. 65 at ID 298.) The information also stated that

the maximum penalty was “15 years” imprisonment, which is also consistent with the crime of

breaking and entering an occupied dwelling house, as opposed to any other type of structure. The

judgment of sentence indicates that the sentence was for Count One and it also reflects the same

charge of breaking and entering an occupied dwelling. (Doc, 65 at ID 300.) Since Petitioner’s

conviction was for a divisible offense whose elements match the generic offense of burglary, I

suggest that his conviction was properly used as a predicate crime of violence offense under the

ACCA. 

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I also find that a more recent Sixth Circuit decision further supports this result. On March

10, 2017, the Sixth Circuit decided United States v. Quarles, 850 F.3d 836 (6th Cir. 2017). Quarles

argued that he was not an armed career criminal because his conviction for third-degree home

invasion under another version of the Michigan statute, which punishes a person who breaks and

enters a dwelling with intent to commit a misdemeanor in the dwelling, was broader than generic

burglary and could not be used to enhance his sentence under the ACCA. Mich. Comp. Laws §

750.110a(4). Quarles argued that the Michigan statute was overbroad because the term dwelling

encompasses more than a building or other structure. Id. The Court in Quarles noted that the

Michigan statutory definition of dwelling under §750.110a(1)(a) is “a structure or shelter that is

used permanently or temporarily as a place of abode, including an appurtenant structure attached

to that structure or shelter.” Id. at 838. The Court also noted that a defendant must show more than

a theoretical possibility, i.e., a realistic probability, that the statute could apply to conduct that falls

outside the generic definition of a crime. Since the dictionary definition of a dwelling is a dwelling

place or home, the Court concluded that “it would be a stretch, rather than a realistic probability,

that a tree, vehicle, boat, outcropping of a rock, cave, bus stop, or suspended tarp would be

considered a ‘home.’” Id. Therefore, the Court found that the defendant’s conviction of thirddegree home invasion qualified for use under the ACCA.

Although Quarlesinvolves yet another version of the statute, the same logic holds true. To

the extent that Petitioner contends that a dwelling could also include a boat and that this possibility

renders the Michigan statute overbroad, I suggest that Quarles defeats that argument. 

Accordingly, I suggest that Petitioner’s motion to vacate sentence be DENIED.

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III. REVIEW

Rule 72(b)(2) of the Federal Rules of Civil Procedure states that “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A partymay respond to another

party’s objections within 14 days after being served with a copy.” Fed. R. Civ. P. 72(b)(2); see also

28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140, 155; Howard v. Sec’y of Health & Human Servs., 932

F.2d 505, 508 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). The

parties are advised that making some objections, but failing to raise others, will not preserve all

the objections a party may have to this Report and Recommendation. Willis v. Sec’y of Health &

Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of Teachers Local 231,

829 F.2d 1370, 1373 (6th Cir. 1987). According to E.D. Mich. LR 72.1(d)(2), a copy of any

objections is to be served upon this magistrate judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,” etc. Any objection

must recite precisely the provision of this Report and Recommendation to which it pertains. Not

later than 14 days after service of an objection, the opposing party may file a concise response

proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR

72.1(d). The response must specifically address each issue raised in the objections, in the same

order, and labeled as “Response to Objection No. 1,” “Response to Objection No. 2,” etc. If the

Court determines that any objections are without merit, it may rule without awaiting the response.

Date: June 5, 2017 s/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

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CERTIFICATION

I hereby certify that the foregoing document was electronically filed this date through

the Court’s CM/ECF system which delivers a copy to all counsel of record. A copy was also

sent via First Class Mail to William Spicer #50847039 at Allenwood U.S. Penitentiary, Inmate

Mail/Parcels, P.O. Box 3000, White Deer, PA 17887.

Date: June 5, 2017 By s/Kristen Castaneda 

 Case Manager 

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