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United States v. Naylor

United States Court of Appeals, Eighth Circuit

April 5, 2018

United States of America Plaintiff-Appellee
v.
Charles P. Naylor, II Defendant-Appellant

          Submitted: September 19, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc. [1]

          KELLY, Circuit Judge.

         Charles Naylor, II appeals the 180-month prison sentence the district court imposed after he pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and the district court enhanced his sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Because we conclude that Naylor's Missouri second-degree burglary convictions do not qualify as violent felonies under the ACCA, we vacate the sentence, and remand the case to the district court for resentencing.

         I. Background

         In November 2015, Naylor pleaded guilty to being a felon in possession of a firearm. The district court found that four of Naylor's prior Missouri second-degree burglary convictions under Mo. Rev. Stat. § 569.170 (1979) qualified as violent felonies, and imposed an ACCA-enhanced sentence of 180 months imprisonment. On appeal, a panel of this court affirmed Naylor's sentence, concluding that it was bound by the decision in United States v. Sykes, 844 F.3d 712 (8th Cir. 2016). Naylor petitioned for rehearing en banc, which we granted. We now hold that convictions under Mo. Rev. Stat. § 569.170 (1979) do not qualify as violent felonies under the ACCA.[2] To the extent Sykes concluded otherwise, it is overruled.

         II. Discussion

         The sentence for being a felon in possession of a firearm in violation of § 922(g)(1) is generally no more than ten years in prison. 18 U.S.C. § 924(a)(2). If, however, a defendant has three or more prior convictions for a violent felony or serious drug offense, the ACCA increases the range of possible sentences to a mandatory minimum of fifteen years, and maximum of life, in prison. Id. § 924(e)(1).

         The ACCA defines violent felony to include "burglary." Id. § 924(e)(2)(B)(ii). In the ACCA, Congress 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." Taylor v. United States, 495 U.S. 575, 598 (1990). Naylor's convictions count as violent felonies under the ACCA "if, but only if, [the Missouri second-degree burglary statute's] elements are the same as, or narrower than, those of the generic offense." See Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). "But if the [statute] covers any more conduct than the generic offense, then it is not an ACCA 'burglary'-even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries." See id. at 2248. To determine whether Naylor's burglary convictions qualify as generic burglaries for purposes of the ACCA, we must "focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of" his burglary cases. See id. (citing Taylor, 495 U.S. at 600-01). This analysis "is straightforward when a statute sets out a single (or 'indivisible') set of elements to define a single crime." Id. In that case, we simply compare the statute's elements to those of generic burglary to see if they match. Id. This is called the categorical approach. Id.

         Where, as here, a statute lists alternative methods of committing a crime, we must first determine whether the alternatives are elements or means. Id. at 2256. "Elements are the constituent parts of a crime's legal definition-the things the prosecution must prove to sustain a conviction." Id. at 2248 (quotation omitted). "At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty." Id. (citation omitted). Means are "[h]ow a given defendant actually perpetrated the crime." Id. at 2251. They "need neither be found by a jury nor admitted by a defendant." Id. at 2248. If the statutory alternatives are elements, the statute is divisible, and we apply the modified categorical approach, wherein we may "look[] to a limited set of documents . . . to determine what crime, with what elements, a defendant was convicted of." Id. at 2249. But if they are means, the statute is indivisible, and we apply the categorical approach. See id. at 2249-57.

         The issue before us is whether the Missouri second-degree burglary statute is divisible or indivisible, and accordingly, whether we should apply the categorical or modified categorical approach to determine whether Naylor's previous convictions qualify as violent felonies under the ACCA. A person commits Missouri second-degree burglary "when he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein." Mo. Rev. Stat. § 569.170. Here, whether the Missouri second-degree burglary statute is divisible turns on whether the language "building or inhabitable structure" lists separate elements delineating two distinct crimes (burglary of a building and burglary of an inhabitable structure) or various means by which a single crime (burglary of a building or inhabitable structure) can be committed. If they are elements, the statute is divisible and we may apply the modified categorical approach. See Mathis, 136 S.Ct. at 2249, 2256. If the modified categorical approach applies, then Naylor's sentence was properly enhanced under the ACCA, as it is undisputed that four of his Missouri second-degree burglary convictions were based on his knowing, unlawful entry into buildings. But if instead they are means, the statute is indivisible and we must apply the categorical approach. See id. at 2251-57. Under the categorical approach, Naylor is not subject to an enhanced sentence under the ACCA, as the statutory definition of "inhabitable structure" is broader than the locational element of generic burglary. See id. at 2248.

         "This court reviews de novo the district court's determination that a defendant's prior conviction constitutes a violent felony under the ACCA." United States v. Walker, 840 F.3d 477, 489 (8th Cir. 2016). To determine whether the Missouri second-degree burglary statute is divisible or indivisible, we look to case law to see if a Missouri court has definitively resolved the issue of whether "building or inhabitable structure" denotes elements or means. Mathis, 136 S.Ct. at 2256. If so, we need only follow the Missouri court's holding. Id. "Likewise, the statute on its face may resolve the issue." Id. Missouri model jury instructions may also guide our inquiry. See id. at 2257; see also United States v. McMillan, 863 F.3d 1053, 1057 (8th Cir. 2017). If Missouri law does not provide "clear answers, " we may "peek" at the records of Naylor's convictions themselves, but only for the "sole and limited purpose of determining whether the listed items are elements of the offense." Mathis, 136 S.Ct. at 2256-57 (cleaned up). If the record materials do not speak plainly on the means-elements issue, we will be unable to meet the "demand for certainty" required of any determination that a conviction qualifies as a violent felony under the ACCA. Id. at 2257.

         A. The Text of the Statute

         Initially, the statute on its face does little to guide our means-elements inquiry. See id. at 2256. The Missouri second-degree burglary statute provides as follows:

A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein. Burglary in the second degree is a class C felony.

Mo. Rev. Stat. § 569.170 (1979). An inhabitable structure is statutorily defined to include:

a ship, trailer, sleeping car, airplane, or other vehicle or structure:
(a) Where any person lives or carries on business or other calling; or
(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or
(c) Which is used for overnight accommodation of persons. Any such vehicle or structure is "inhabitable" regardless of whether a person is actually present . . . .

Id. § 569.010(2) (1979).[3]

         The statute provides for the same range of potential punishments regardless of whether a building or inhabitable structure is the object of the burglary. Mo. Rev. Stat. §§ 557.016, 558.011.1(3), and 569.170.2 (1979); see Mathis, 136 S.Ct. at 2257. It also does not identify which things must be charged and which things need not be. See Mathis, 136 S.Ct. at 2256.[4] Because the text of the statute does not clarify the means-elements issue, we turn to Missouri case law.

         B. Missouri case law

         As a general matter, the Supreme Court of Missouri has consistently held that disjunctive alternatives in Missouri's criminal statutes should be construed as listing various ways of committing a single crime. See State v. Lusk, 452 S.W.2d 219, 223 (Mo. 1970). As that court has explained, "if a statute makes criminal the doing of this, or that, or that, mentioning several things disjunctively, there is but one offense, which may be committed in different ways; and in most instances all may be charged in a single count. . . . And proof of the offense in any one of the ways will sustain the allegation." State v. Hartman, 273 S.W.2d 198, 203 (Mo. banc 1954). In other words, where a Missouri statute enumerates a list of prohibited activities disjunctively, the statute creates only one crime, albeit a crime that can be committed in a variety of ways.

         When charging under such statutes, Missouri prosecutors are not limited to alleging that the defendant violated the statute by only one of the disjunctively listed methods. Indeed, prosecutors may charge that a defendant violated such a statute by one, some, or all of the possible ways, so long as the means that are selected are set out in the conjunctive in the charging document. State v. Currier, 125 S.W. 461, 463 (Mo. 1910) ("It has uniformly been held by [the Supreme Court of Missouri] that where a statute makes the commission of certain acts, named therein in the disjunctive, a crime, all of the several acts may be charged conjunctively in one count, and the count will be sustained by proof of one of the offenses charged."). The jury may then convict the defendant of violating the statute by any of those methods, and need not be unanimous as to which of those methods the defendant used to perpetrate the crime. State v. Fitzpatrick, 193 S.W.3d 280, 292 (Mo.Ct.App. 2006) ("[T]he jury need only be unanimous as to the ultimate issue of guilt or innocence, and need not be unanimous as to the means by which the crime was committed.").[5] Missouri's well-established rule that disjunctive phrases in criminal statutes should be treated as methods of committing a single crime suggests that "building or inhabitable structure" denotes two means of committing a single crime under the Missouri second-degree burglary statute.[6]

         While Missouri courts have not yet decided the precise issue before us, they have resolved cases involving the second-degree burglary statute in a manner consistent with this general rule.[7] In State v. Pulis, the defendant was convicted of attempted second-degree burglary based on his attempt to unlawfully enter a greenhouse. 822 S.W.2d 541, 542-43 (Mo.Ct.App. 1992). On appeal, he argued that the state had failed to prove that the greenhouse was a "building." Id. at 543. The Missouri Court of Appeals affirmed, reasoning that it did not need to reach the issue of whether the greenhouse was a "building" because it was clearly an "inhabitable structure." Id. at 544-45. Importantly, the court explained: "Inasmuch as burglary in the second degree . . . can be committed by unlawfully entering either a building or an inhabitable structure, we need not determine whether the greenhouse was a 'building' if it meets the statutory definition of 'inhabitable structure.'" Id. at 544 (emphasis in original). This conclusion necessarily rests on the premise that "building or inhabitable structure" are means, not elements. That is, the court could not have affirmed the defendant's conviction on the alternative basis that the greenhouse was an inhabitable structure had it believed "building or inhabitable structure" listed elements of two different crimes. See State v. Smith, 592 S.W.2d 165, 165 (Mo. banc 1979); State v. Brown, 950 S.W.2d 930, 931 (Mo.Ct.App. 1997) ("Due process requires that a defendant cannot be charged with one offense and be convicted of another.").

         In State v. Washington, the defendant was convicted by a jury of first-degree burglary based on his unlawful entry into a garage. 92 S.W.3d 205, 206-07 (Mo.Ct.App. 2002). At the time, two people were present in a house that shared a roof and common walls with the garage; a covered porch led from the house to the garage, but the house's living quarters were not accessible from inside the garage. Id. at 209-10. In Missouri, a person commits first-degree burglary when he "knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein" and does so, inter alia, "while '[t]here is present in the structure another person who is not a participant in the crime.'" Id. at 208 (quoting Mo. Rev. Stat. § 569.160.1(3) (1979)). On appeal, the defendant argued that there was insufficient evidence to support his conviction because the garage itself was not an "inhabitable structure, " and that it could not be treated as part of the house because the garage and the house's living quarters were not connected by an interior door. Id. at 208-09.

         The Missouri Court of Appeals vacated the defendant's conviction for first-degree burglary, agreeing that the garage itself was not an inhabitable structure, nor was it sufficiently connected to the house such that it could be considered a part thereof. Id. at 209-10. In Missouri, if an appellate court reverses a conviction for insufficiency of the evidence, it may nevertheless enter conviction on a lesser included offense "if the evidence was sufficient for the jury to find each of those elements and the jury was required to find those elements to enter the ill-fated conviction on the greater offense." Id. at 210 (citing State v. O'Brien, 857 S.W.2d 212, 220 (Mo. banc 1993)). Noting that second-degree burglary is a lesser included offense of first-degree burglary, as it "simply dispenses with the additional first-degree burglary element requiring an innocent's presence, " the Washington court then entered conviction under the second-degree burglary statute. Id. at 210-11; see also State v. Jackson, 433 S.W.3d 390, 404 (Mo. banc 2014) (discussing "nested" lesser included offenses). The Missouri Court of Appeals could only do so if "building or inhabitable structure" were means.

         To be sure, if "building or inhabitable structure" denotes elements of separate crimes, then the defendant in Washington would have been appealing a conviction for first-degree burglary of an inhabitable structure. Because a lesser included offense must share all its necessary elements with its greater offense, the lesser included offense of first-degree burglary of an inhabitable structure would be second-degree burglary of an inhabitable structure.[8] But, the Missouri Court of Appeals could not enter conviction for second-degree burglary of an inhabitable structure for one of the same reasons it vacated the defendant's first-degree burglary conviction: the garage was not an inhabitable ...


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