Submitted: February 17, 2017
from United States District Court for the Western District of
Missouri - Kansas City
RILEY, Chief Judge,  LOKEN and BENTON, Circuit Judges.
BENTON, Circuit Judge.
case is on remand from the Supreme Court of the United
States. Phillips v. United States, 137 S.Ct. 634
(2017). Preston Charles Phillips pled guilty to being a felon
in possession of a firearm in violation of 18 U.S.C. §
922(g)(1) and 924(e). The district court sentenced him as an
armed career criminal. He appealed, challenging, among other
things, the ACCA designation. This court affirmed. United
States v. Phillips, 817 F.3d 567 (8th Cir. 2016). The
Supreme Court vacated the judgment and remanded for
"further consideration in light of Mathis v. United
States, " 136 S.Ct. 2243 (2016). Phillips,
137 S.Ct. at 634. In light of Mathis, this court
vacates the sentence and remands for resentencing.
objected to his classification as an armed career criminal,
claiming his Missouri convictions for second-degree domestic
assault and second-degree burglary were not violent felonies.
Applying the "categorical approach, " this court
held that two second-degree domestic assault convictions were
violent felonies under the ACCA's force clause,
924(e)(2)(B)(i), and one second-degree burglary conviction
was an enumerated violent felony in 924(e)(2)(B)(ii).
certiorari, the Supreme Court vacated and remanded for
further consideration in light of Mathis.
Id. This court vacated its March 8, 2016 opinion,
recalled the mandate, and reopened the case.
Supreme Court's decision in Mathis, which did
not address the ACCA's force clause, does not alter [the]
prior decision that [Phillips' convictions for
second-degree domestic assault] were ACCA violent
felonies." United States v. Lamb, 847 F.3d 928,
930 (8th Cir. 2017). "Mathis does require
additional analysis" whether Phillips' second-degree
burglary convictions were "enumerated ACCA violent
whether a past conviction is a violent felony, this court
applies the categorical approach, looking "'only to
the fact of conviction and the statutory definition of the
prior offense.'" United States v. Sykes,
844 F.3d 712, 715 (8th Cir. 2016), quoting Taylor v.
United States, 495 U.S. 575, 602 (1990). "If the
statute of conviction lists elements in the alternative, the
sentencing court may apply the 'modified categorical
United States v. Lamb, this court explained how to
apply the "modified categorical approach" to
determine whether a burglary is a violent felony after
Many 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.
In Mathis, the Court resolved a circuit conflict
regarding the meaning of the term "divisible."
Under Mathis, when "faced with an alternatively
phrased statute [we 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.
Lamb, 847 F.3d at 931.
"The basic elements of the generic burglary offense are
'unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a
crime.'" United States v. Olsson, 742 F.3d
855, 856 (8th Cir. 2014), quoting Taylor, 495 U.S.
at 599. Phillips has two convictions for second-degree
burglary under ...