Submitted: October 16, 2017
from United States District Court for the District of North
Dakota - Fargo
WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Kinney pled guilty to one count of possession of a firearm by
a convicted felon and one count of possession of ammunition
by a convicted felon, both in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e). Pursuant to 18
U.S.C. § 924(e)(1) and 924(e)(2)(B)(ii) of the Armed
Career Criminal Act (ACCA), the district court sentenced
Kinney as an armed career criminal based on four previous
convictions for accomplice to burglary under North Dakota
law. Because we find that the North Dakota statute of
conviction is indivisible and criminalizes more than the
definition of "burglary" under federal law, we
reverse and remand for resentencing.
argues that the North Dakota burglary statute is both
indivisible and overbroad, thereby precluding convictions
under that statute from serving as ACCA predicates. The
government responds, asserting that a conviction under the
statute categorically qualifies as a violent felony or,
alternatively, that the statute is divisible and application
of the modified categorical approach shows that Kinney was
convicted of a crime matching the generic definition of
burglary under federal law. "We review de novo a
district court's finding that a defendant's prior
conviction constitutes a violent felony for purposes of the
ACCA." United States v. Lindsey, 827 F.3d 733,
738 (8th Cir.), cert. denied, 137 S.Ct. 413 (2016).
the ACCA, a defendant is subject to a fifteen-year mandatory
minimum sentence if he or she is convicted of being a felon
in possession of a firearm and has three prior convictions
for a violent felony. 18 U.S.C. § 924(e)(1). A
"violent felony" includes any state or federal
felony that "is burglary, arson, or extortion."
§ 924(e)(2)(B)(ii). "In listing th[e]se crimes, . .
. Congress referred only to their usual or . . . generic
version-not to all variants of the offenses." Mathis
v. United States, 136 S.Ct. 2243, 2248 (2016).
Therefore, as it pertains to burglary, "Congress meant a
crime 'contain[ing] the following elements: an unlawful
or unprivileged entry into . . . a building or other
structure, with intent to commit a crime.'"
Id. (alteration in original) (quoting Taylor v.
United States, 495 U.S. 575, 598 (1990)).
"To determine whether a prior conviction is for generic
burglary . . . courts apply what is known as the categorical
approach: They focus solely on whether the elements of the
crime of conviction sufficiently match the elements of
generic burglary, while ignoring the particular facts of the
case." Id. "Elements are the constituent
parts of a crime's legal definition-the things the
prosecution must prove to sustain a conviction."
Id. (internal quotation marks omitted). Means,
"by contrast, are mere real-world things-extraneous to
the crime's legal requirements. . . . They are
circumstance[s] or event[s] having no legal effect [or]
consequence: In particular, they need neither be found by a
jury nor admitted by a defendant." Id.
(alterations in original) (internal quotation marks omitted).
statute lists only a single set of elements, the statute is
indivisible and the standard categorical approach must be
used. See id. at 2248-49. This is true even if the
statute lists several alternative factual means for
committing a single crime. Id. at 2249. The Iowa
statute at issue in Mathis, for example,
criminalized burgling "'any building, structure,
[or] land, water, or air vehicle.'"
Id. at 2250 (alterations in original) (quoting Iowa
Code § 702.12). Because Iowa courts had interpreted the
statute as presenting alternative means for committing the
single crime of burglary and clarified that a jury need not
agree on which of the means was present in a particular case,
the United States Supreme Court concluded the statute was
indivisible. Id. at 2253. "In short, the
statute defines one crime, with one set of elements, broader
than generic burglary-while specifying multiple means of
fulfilling its locational element, some but not all of which
(i.e., buildings and other structures, but not
vehicles) satisfy the generic definition." Id.
at 2250; see also Descamps v. United States, 133
S.Ct. 2276, 2285-86 (2013) (holding as indivisible a
California burglary statute which prohibited the lawful or
unlawful entering of a place with the intent to steal).
"[t]he first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether
its listed items are elements or means."
Mathis, 136 S.Ct. at 2256. This inquiry should be
resolved by looking to "authoritative sources of state
law." Id. Where "a state court decision
definitively answers the question . . . a sentencing judge
need only follow what it says." Id.
Additionally, the express language of the statute may
indicate that alternatively phrased items are elements
"[i]f statutory alternatives carry different
punishments" or if the statute itself identifies
"which things must be charged." Id.
Finally, if these authoritative sources fail to provide a
clear answer, judges are allowed a "peek" at
"the record of the prior conviction itself."
Id. at 2256-57 (internal quotation marks omitted).
The Mathis Court hypothesized that where a specific
count in "an indictment and correlative jury
instruction charge a defendant with burgling a
'building, structure, or vehicle, '" this would
be "as clear an indication as any that each alternative
is only a possible means of commission, not an element that
the prosecutor must prove to a jury beyond a reasonable
doubt." Id. at 2257.
North Dakota Law
therefore turn to North Dakota law to discern whether the
statute of conviction is (1) overinclusive and (2) divisible
or indivisible. At the time of Kinney's conviction ...