Submitted: September 19, 2017
from United States District Court for the Western District of
Missouri - Kansas City
SMITH, Chief Judge, WOLLMAN, LOKEN, COLLOTON, GRUENDER,
BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.
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.
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. To the extent Sykes
concluded otherwise, it is overruled.
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. §
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.
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.
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.
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.
The Text of the Statute
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
(a) Where any person lives or carries on business or other
(b) Where people assemble for purposes of business,
government, education, religion, entertainment or public
(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).
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. Because the text
of the statute does not clarify the means-elements issue, we
turn to Missouri case law.
Missouri case law
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.
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."). 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.
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. 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
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.
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.
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. 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 ...