Jerry N. Brown Petitioner - Appellant
United States of America Respondent - Appellee
Submitted: January 16, 2019
from United States District Court for the Western District of
Missouri - Springfield
LOKEN, GRASZ, and STRAS, Circuit Judges.
question in this case is whether Jerry Brown's 1977
Missouri conviction of second-degree burglary is a
"violent felony" under the Armed Career Criminal
Act. Because we conclude that it is not, we remand for
2007, Brown pleaded guilty to being a felon in possession of
a firearm. The district court imposed a 15-year
statutory-minimum sentence under the Armed Career Criminal
Act ("ACCA") because he had three previous
convictions for "violent felon[ies]." 18 U.S.C.
§ 924(e)(1). One of them was a 1977 conviction under
Missouri's since-repealed second-degree-burglary statute.
Without the three felonies, he would have faced a maximum
sentence of 10 years in prison. See id. §
a decade later, Brown moved to correct his sentence.
See 28 U.S.C. § 2255(a). His argument was that
several Supreme Court decisions had cast doubt on whether his
second-degree-burglary conviction qualified as a violent
felony. We granted a certificate of appealability to address
this question. Applying de novo review, see Kelly v.
United States, 819 F.3d 1044, 1047 (8th Cir. 2016), and
setting aside the "timeliness and other procedural"
objections that the government has waived, we conclude that
Brown's second-degree-burglary conviction was not a
includes a list of offenses that qualify as "violent
felon[ies]." See 18 U.S.C. §
924(e)(2)(B)(ii). One of the enumerated offenses is
"burglary," but ACCA does not define burglary or
specify its elements. See id. In the absence of a
definition, the Supreme Court has interpreted ACCA's
enumerated-offenses clause as incorporating a "generic,
contemporary meaning" of each listed offense that is
"independent of the labels employed by the various
States' criminal codes." Taylor v. United
States (Taylor I), 495 U.S. 575, 592, 598
(1990). To determine whether Brown's conviction counts as
generic burglary, "we focus on the elements of the
crime"-as opposed to the actual facts of what he did-and
"compare [them] with those of the generic enumerated
offense." United States v. Schneider, 905 F.3d
1088, 1093 (8th Cir. 2018). If Missouri's 1977 definition
of second-degree burglary is "the same as, or narrower
than," generic burglary, then Brown's conviction
counts. Descamps v. United States, 570 U.S. 254, 257
(2013); see also Mathis v. United States, 136 S.Ct.
2243, 2247 (2016). If not, then Brown does not have three
predicate convictions, and we must reverse and remand for
resentencing. See Mathis, 136 S.Ct. at 2248.
Supreme Court has defined "generic" burglary as
"an unlawful or unprivileged entry into, or remaining
in, a building or other structure, with intent to commit a
crime." Taylor I, 495 U.S. at 598; see also
United States v. Stitt, 139 S.Ct. 399, 403-04 (2018)
(including "a structure or vehicle that has been adapted
or is customarily used for overnight accommodation"
within the generic definition of burglary). The statute in
effect at the time of Brown's conviction prohibited
breaking and entering any building, the breaking and entering
of which shall not be declared by any statute of this state
to be burglary in the first degree, or any booth or tent, or
any boat or vessel, or railroad car in which there shall be
at the time any human being or any goods, wares, merchandise
or other valuable thing kept or deposited, with the intent to
steal or commit any crime therein.
Mo. Rev. Stat. § 560.070 (1969). Some of the locations
contemplated by the statute-such as freight cars, booths, and
fishing boats-are so "nontypical" that they fall
"outside the scope of" generic burglary.
Stitt, 139 S.Ct. at 407 (concluding that
"ordinary boats and vessels . . . and railroad
cars" are not included within the definition of generic
burglary); see also Taylor I, 495 U.S. at 599. So if
the statute "create[d] [just] a single crime [with] a
single set of elements," Schneider, 905 F.3d at
1090, the crime was broader than generic burglary. Under this
interpretation, the listed locations would be means of
committing a single crime, not separate elements defining
multiple crimes. See Mathis, 136 S.Ct. at 2249
(defining "means" as "various factual ways of
committing some [element] of the offense").
other hand, it is possible that each listed location is an
element of a separate crime: burglary of a building, burglary
of a booth, and so on. See Schneider, 905 F.3d at
1090 (explaining that some statutes "define multiple
crimes by listing more than one set of elements"). There
is no dispute here that Brown burglarized a building. See
Shepard v. United States, 544 U.S. 13, 26 (2005)
(explaining that the court can look to a limited set of
record documents to identify the crime of conviction). So if
the Missouri statute created a separate crime for
"burglary of a building," then his conviction would
count as generic burglary even if the burglary of another
listed location would not have. Under this interpretation,
the listed locations would be elements, not means. See
Mathis, 136 S.Ct. at 2248 ...