Submitted: January 18, 2017
from United States District Court for the Southern District
of Iowa - Davenport
WOLLMAN, BRIGHT LOKEN Circuit Judges.[*]
Adam Lamb pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced Lamb to 180 months in prison,
the mandatory minimum sentence under the Armed Career
Criminal Act ("ACCA") for a defendant who has three
prior "violent felony" convictions. 18 U.S.C.
§ 924(e)(1). Lamb appealed his sentence. We affirmed,
applying the familiar but often perplexing "categorical
approach" to assess whether his prior convictions were
violent felonies as defined in 18 U.S.C. § 924(e)(2)(B).
See Descamps v. United States, 133 S.Ct. 2276,
2283-85 (2013); Johnson v. United States, 559 U.S.
133, 144-45 (2010). We concluded that Lamb's two prior
Michigan unarmed robbery convictions were violent felonies
under the ACCA's force clause, § 924(e)(2)(B)(i),
and that a state court charging document established that his
prior Wisconsin burglary conviction was for the crime of
generic burglary, an enumerated violent felony in §
924(e)(2)(B)(ii). United States v. Lamb, 638
F.App'x 575 (8th Cir. 2016). We noted the Supreme Court
had granted a writ of certiorari to review our decision in
United States v. Mathis, 786 F.3d 1068 (8th Cir.
2015), where we upheld applying the ACCA to an Iowa burglary
Supreme Court reversed our decision in Mathis, 136
S.Ct. 2243 (2016), granted Lamb's petition for a writ of
certiorari, vacated our judgment, and remanded "for
further consideration in light of Mathis."
Lamb v. United States, 137 S.Ct. 494 (2016). We
recalled our mandate and reopened the case but did not vacate
our prior opinion. We now conclude that the Supreme
Court's decision in Mathis, which did not
address the ACCA's force clause, does not alter our prior
decision that Lamb's Michigan robbery convictions were
ACCA violent felonies. That portion of our prior opinion is
reinstated. Lamb, 638 F.App'x at 576-77.
Mathis does require additional analysis of whether
Lamb's Wisconsin burglary conviction was an enumerated
ACCA violent felony. As we will explain, Mathis does
not alter our conclusion that he was convicted of generic
burglary. Therefore, we again affirm the judgment of the
ACCA defines the term violent felony to include any state or
federal felony that "is burglary." 18 U.S.C. §
924(e)(2)(B)(ii). In Taylor v. United States, the
Supreme Court concluded that Congress in the ACCA intended to
adopt "the generic, contemporary meaning of burglary
[which] contains at least the following elements: an unlawful
or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime." 495
U.S. 575, 598 (1990). Thus, to determine whether a prior
burglary conviction was for the violent felony of generic
burglary, the Court "focus[es] 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." Mathis, 136 S.Ct. at 2248.
state burglary statutes are overinclusive, that is, they
define burglary more broadly than generic burglary. For
example, a statute may include unlawful entry into places
other than buildings, such as automobiles and vending
machines. If an overinclusive statute has a
"divisible" structure -- defining multiple crimes
by listing one or more elements in the alternative -- the
Court applies a "modified categorical approach"
that "permits [federal] sentencing courts to consult a
limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis
of the defendant's prior conviction."
Descamps, 133 S.Ct. at 2281. However, if the statute
is overinclusive and not divisible, as in Descamps,
no prior conviction under that statute qualifies for the ACCA
mandatory minimum sentence enhancement.
Mathis, the Court resolved a circuit conflict regarding the
meaning of the term "divisible." Under Mathis, when
"faced with an alternatively phrased statute
must first] determine whether its listed items are elements
or means." 136 S.Ct. at 2256. "Elements" are
"the things the prosecution must prove to sustain a
conviction." Id. at 2248 (quotation omitted).
"Means" are "[h]ow a given defendant actually
perpetrated the crime." Id. at 2251. To
distinguish between elements and means, federal sentencing
courts should look at "authoritative sources of state
law" such as "a state court decision [that]
definitively answers the question, " or the
statute's text. If necessary, the court may
"peek" at the record of the prior conviction, but
only to determine if the statutory alternatives are elements
or means. Id. at 2256-57 (quotation omitted). If the
statute lists alternative elements, it is divisible, and
therefore the prior conviction is subject to modified
categorical analysis. Id.
2006, Lamb pleaded no contest to a felony charge that he
violated Wis.Stat. § 943.10(1m)(a), a subsection of the
Wisconsin burglary statute:
943.10(1m) Whoever intentionally enters any
of the following places without the consent of the person in
lawful possession and with intent to steal or commit a felony
in such ...