Submitted: March 10, 2017
from United States District Court for the Eastern District of
Arkansas - Little Rock
RILEY, Chief Judge,  GRUENDER, Circuit Judge, and
SCHREIER,  District Judge.
GRUENDER, Circuit Judge.
Daniel Sims pleaded guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). He
received an enhanced sentence pursuant to the Armed Career
Criminal Act ("ACCA"), which applies to those
felons guilty of possessing a firearm who also have at least
three prior convictions for a violent felony or serious drug
offense. See 18 U.S.C. § 924(e). On appeal,
Sims contends that the district court erred in finding that
his two prior Arkansas residential burglary convictions
qualify as violent felonies because the Arkansas residential
burglary offense is categorically broader than generic
burglary. We agree and therefore vacate Sims's sentence
and remand for resentencing.
ACCA imposes a fifteen-year mandatory minimum sentence for
anyone convicted of unlawfully possessing a firearm who has
three or more prior convictions for serious drug offenses or
violent felonies. 18 U.S.C. § 924(e)(1).
"Burglary" is one of the offenses specifically
enumerated as a violent felony under the ACCA. See
id. § 924(e)(2)(B)(ii). In the ACCA context, the
Supreme Court has defined burglary in its "generic"
usage as "unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit
a crime." See Taylor v. United States, 495 U.S.
575, 598-99 (1990).
Pre-Sentence Investigation Report (PSR) indicated that he had
several prior felony offenses, including two convictions for
serious drug offenses and two Arkansas convictions for
residential burglary. The PSR stated that all four
convictions qualified as ACCA predicate offenses and thus
determined that Sims was subject to a minimum sentence of
fifteen years as well as an advisory sentencing guideline
enhancement based on his status as an armed career criminal.
See U.S.S.G. § 4B1.4. Sims conceded that his
two convictions for serious drug offenses constituted ACCA
predicate offenses but argued that his Arkansas residential
burglary convictions did not. He asserted that the Arkansas
residential burglary statute was over-inclusive and
criminalized conduct that fell outside the generic definition
of burglary. See Taylor, 495 U.S. at 599.
district court disagreed with Sims and found his Arkansas
residential burglary convictions were ACCA predicate
offenses. As a result, Sims's advisory sentencing
guidelines range was 188 to 235 months' imprisonment, and
the district court imposed a 210-month sentence. On appeal,
Sims renews his argument that Arkansas residential burglary
is broader than generic burglary and that his convictions do
not qualify as ACCA predicate offenses.
Arkansas law, "[a] person commits residential burglary
if he or she enters or remains unlawfully in a residential
occupiable structure of another person with the purpose of
committing in the residential occupiable structure any
offense punishable by imprisonment." Ark. Code Ann.
§ 5-39-201(a)(1). A "'[r]esidential occupiable
structure' means a vehicle, building, or other structure:
(i) [i]n which any person lives; or (ii) [t]hat is
customarily used for overnight accommodation of a person
whether or not a person is actually present."
Id. § 5-39-101(4)(A). The Government concedes
that the Arkansas residential burglary statute's listed
items are separate means of satisfying a single locational
element. See Mathis v. United States, 136 S.Ct.
2243, 2248-49 (2016) ("'Elements' are the
constituent parts of a crime's legal definition-the
things the prosecution must prove to sustain a conviction. .
. . [M]eans . . . spell out various factual ways of
committing some component of the offense . . . ."
(citations and quotations omitted)). Thus, "we apply the
'categorical approach, ' under which we 'look
only to the fact of conviction and the statutory definition
of the prior offense.'" United States v.
Tucker, 740 F.3d 1177, 1179 (8th Cir. 2014) (en banc)
(quoting Taylor, 495 U.S. at 602). In short,
Sims's Arkansas residential burglary convictions will
qualify as generic burglaries-and thus serve as ACCA
predicates-"only if the statute's elements are the
same as, or narrower than, those of the generic
offense." See Descamps v. United States, 133
S.Ct. 2276, 2281 (2013). We review the question of whether a
prior conviction qualifies as an ACCA predicate de
novo. United States v. Thornton, 766 F.3d 875,
878 (8th Cir. 2014).
central contention is that generic burglary's
"building or structure" element does not encompass
vehicles, and thus, the Arkansas residential burglary statute
sweeps more broadly than generic burglary. The Supreme Court
has clearly stated that "[t]he [ACCA] makes burglary a
violent felony only if committed in a building or enclosed
space ('generic burglary'), not in a boat or
motor vehicle." Shepard v. United States,
544 U.S. 13, 15-16 (2005) (emphasis added). In Mathis v.
United States, the Court considered an Iowa burglary
statute that all parties agreed criminalized more conduct
than generic burglary. 136 S.Ct. at 2250. The Iowa statute
made it a crime to burgle "any building, structure,
appurtenances to buildings and structures, land, water or air
vehicle, or similar place adapted for overnight accommodation
of persons, or occupied by persons for the purpose of
carrying on business or other activity therein, or for the
storage or safekeeping of anything of value."
See Iowa Code Ann. § 702.12; Mathis,
136 S.Ct. at 2250. The Supreme Court agreed that the Iowa
burglary statute was over-inclusive for the simple reason
that the burglary statute "reache[d] . . . land,
water, or air vehicle[s]." Mathis, 136
S.Ct. at 2250 (emphasis in original). Thus, the Court
determined that convictions under the Iowa burglary statute
could not serve as ACCA predicate offenses. Id. at
Government responds that while the burglary of vehicles does
not constitute generic burglary, the Arkansas residential
burglary statute applies only to vehicles "[i]n which
any person lives" or "[t]hat [are] customarily used
for overnight accommodation, " see Ark. Code
Ann. § 5-39-101(4)(A), and therefore, Arkansas
residential burglary criminalizes conduct that is "the
same as, or narrower than . . . the generic offense, "
see Descamps, 133 S.Ct. at 2281. The
Government's argument is not an unreasonable one as this
issue has divided circuit courts. Compare United States
v. Spring, 80 F.3d 1450, 1461-62 (10th Cir. 1996)
(holding burglary of vehicles "adapted for the overnight
accommodation of persons" constitutes generic burglary)
(cited approvingly in United States v. Patterson,
561 F.3d 1170, 1173 (10th Cir. 2009), with United States
v. White, 836 F.3d 437, 444-46 (4th Cir. 2016)
(concluding a statute criminalizing burglary of
"vehicle[s] primarily designed for human habitation and
occupancy" sweeps more broadly than generic burglary),
and United States v. Grisel, 488 F.3d 844, 850-51
(9th Cir. 2007) (en banc) (ruling that burglary of "any
booth, vehicle, boat, aircraft, or other structure adapted
for overnight accommodation of persons or for carrying on
business therein" falls outside generic burglary). We
are not, however, writing on a blank slate, as our decision
in United States v. Lamb, 847 F.3d 928 (8th Cir.
2017), forecloses the Government's argument.
Lamb, we analyzed a Wisconsin statute that
criminalized, among other things, the burglary of "[a]
motor home or other motorized type of home or a trailer home,
whether or not any person is living in such home."
Lamb, 847 F.3d at 931. We concluded "[w]ithout
question, [the statute], viewed as a whole, encompasses a
broader range of conduct than generic burglary as defined in
Taylor, such as burglary of . . . motor homes."
Id. Wisconsin's statute criminalizing the
burglary of a "motor home" is equivalent to
Arkansas's residential burglary statute, which
criminalizes the burglary of vehicles where people live or
that are customarily used for overnight accommodations.
See White, 836 F.3d at 445-46; see also
Grisel, 488 F.3d at 851 n.5. And just as it was
inconsequential that Wisconsin's statute limited burglary
to motor homes, it is inconsequential that Arkansas's
statute confines residential burglary to vehicles "[i]n
which any person lives" or "[t]hat [are]
customarily used for overnight accommodation." Ark. Code
Ann. § 5-39-101(4)(A); see also United States v.
Forrest, 611 F.3d 908, 913 (8th Cir. 2010) (finding a
Colorado burglary statute was categorically broader than
generic burglary because it covered vehicles adapted for
overnight accommodations). We therefore conclude that
Arkansas residential burglary categorically sweeps more
broadly than generic burglary.
Sims's Arkansas residential burglary convictions do not
qualify as ACCA predicate offenses. We thus vacate ...