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United States v. Kinney

United States Court of Appeals, Eighth Circuit

April 23, 2018

United States of America Plaintiff- Appellee
Jonathon Lee Kinney Defendant-Appellant

          Submitted: October 16, 2017

          Appeal from United States District Court for the District of North Dakota - Fargo

          Before WOLLMAN, BEAM, and SHEPHERD, Circuit Judges.


         Jonathon 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.

         I. Discussion

         Kinney 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).

         A. The ACCA Framework

         Under 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).

         Where a 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).

         Accordingly, "[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.

         B. North Dakota Law

         We 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 ...

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