Does a Texas Burglary Conviction Count Under the ACCA?

Update (October 2026): This 2017 post is outdated. In United States v. Stitt, 586 U.S. 27 (2018), the Supreme Court reversed the Sixth Circuit and held that burglary of a structure or vehicle adapted for overnight stays can count as generic burglary. In Quarles v. United States (2019), it held that "remaining-in" burglary counts as generic burglary even if the intent to commit a crime forms after entry. After those cases, the en banc Fifth Circuit held in United States v. Herrold, 941 F.3d 173 (5th Cir. 2019) that Texas burglary is generic burglary and counts as an ACCA violent felony. The Supreme Court denied review in 2020.

The 2017 Question

In 2017, the full Fifth Circuit agreed to decide whether Texas burglary of a habitation under Texas Penal Code 30.02(a)(1) is "generic burglary" under the Armed Career Criminal Act (ACCA). See United States v. Herrold, No. 14-11317 (5th Cir. 2017).

That decision came soon after the Sixth Circuit's en banc ruling in United States v. Stitt, No. 14-6158. The Sixth Circuit held that Tennessee aggravated burglary did not qualify. (The Supreme Court later reversed that ruling.)

The ACCA raises the sentence for a felon with a gun who has three prior qualifying convictions to at least 15 years. 18 U.S.C. 924(e). One way a prior conviction qualifies is if it is a listed, or "enumerated," offense. 18 U.S.C. 924(e)(2)(B)(ii). Burglary is one of them.

In Taylor v. United States (1990), the Supreme Court held that "burglary" under the ACCA means "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." This is called generic burglary.

States define burglary in different ways. The Sixth Circuit had held that Tennessee's law was broader than generic burglary because it covered "mobile homes, trailers, and tents" and any "self-propelled vehicle."

Herrold En Banc Petition

Herrold's Arguments

Herrold argued that the Texas law was too broad in the same way. Texas defines "habitation" to include vehicles "adapted for the overnight accommodation of persons." Texas Penal Code 30.01(1). At the time, Herrold pointed out that the Supreme Court had never treated breaking into vehicles, even ones adapted for living in, as generic burglary. (In 2018, Stitt held that burglary of a vehicle adapted for overnight stays can be generic burglary.)

Herrold also asked the Fifth Circuit to overrule United States v. Uribe. He argued that Uribe wrongly treated the Texas burglary statute as divisible (made up of separate crimes) in light of Mathis v. United States.

At the time, a ruling for Herrold could have shortened long ACCA sentences. It might also have helped people who received a career offender enhancement based on a prior Texas burglary.

As explained in the update above, those arguments ultimately failed after the Supreme Court's decisions in Stitt and Quarles.

The en banc petition in Herrold is here: Herrold en banc petition. The government's response is here: USA response to Herrold en banc petition.

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