United States v. Jonathon Lee Kinney, 888 F.3d 360

Defendant Jonathon Kinney pled guilty in 1999 to possessing a firearm and ammunition as a felon; district court sentenced him under the Armed Career Criminal Act (ACCA) based on four prior North Dakota convictions for accomplice-to-burglary.
ACCA imposes a 15-year mandatory minimum if a felon-in-possession has three prior violent-felony convictions; burglary qualifies only if it matches the generic federal definition (unlawful entry of a building or structure with intent to commit a crime).
North Dakota’s burglary statute (1999) defined burglary as willfully entering or remaining in a "building or occupied structure," and defined "occupied structure" to include certain vehicles used for living or business purposes.
The statute’s text thus reaches vehicles (e.g., motor homes), raising an overbreadth concern because generic burglary excludes vehicles.
The central legal question became whether the statute’s alternatives ("building" vs. "occupied structure") are elements (divisible statute) or mere means (indivisible statute) under Mathis; if indivisible and overbroad, prior convictions cannot serve as ACCA predicates.
The available charging documents in Kinney’s record charged "a building or occupied structure," which the court treated as indicating the alternatives are means, making the statute indivisible.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether North Dakota burglary statute is overbroad relative to generic burglary	Kinney: statute is overinclusive because it covers vehicles and thus broader than generic burglary	Government: statute limits "occupied structure" to vehicles used for living/business, aligning it with generic burglary	Held: Statute is overbroad because it reaches vehicles (e.g., motor homes) and thus covers more than generic burglary
Whether the statute is divisible (elements) or indivisible (means) for the modified categorical approach	Kinney: statutory structure, jury instructions, and charging documents show alternatives are means, making statute indivisible	Government: disjunctive statutory phrasing indicates elements (divisible)	Held: Indivisible — charging documents in the record charging "a building or occupied structure" indicate the alternatives are means, so statute is indivisible and cannot serve as ACCA predicates

Mathis v. United States, 136 S. Ct. 2243 (2016) (explains categorical/modified categorical approaches and distinguishes elements from means)
Taylor v. United States, 495 U.S. 575 (1990) (defines generic burglary for ACCA purposes)
Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach to divisible statutes)
Shepard v. United States, 544 U.S. 13 (2005) (clarifies admissible documents for determining generic offense elements)
United States v. Lindsey, 827 F.3d 733 (8th Cir. 2016) (standard of review: de novo for ACCA predicate determinations)
United States v. Sims, 854 F.3d 1037 (8th Cir. 2017) (holds similar state statute overbroad when it covers vehicles)
United States v. Lamb, 847 F.3d 928 (8th Cir. 2017) (concludes statute encompassing motor homes is broader than generic burglary)