United States v. Paul Prater, 766 F.3d 501

Prater was convicted of felon in possession of ammunition under 18 U.S.C. § 922(g)(1).
The district court enhanced his sentence under the Armed Career Criminal Act (ACCA) § 924(e)(1) based on four New York predicate convictions, including third-degree burglary and attempted third-degree burglary.
The district court treated these offenses as categorically qualifying as violent felonies, applying U.S.S.G. § 4B1.4 and elevating his offense level and mandating a 180-month minimum.
The court did not apply the modified categorical approach to determine which version of the NY offenses Prater actually was convicted of.
On appeal, Prater challenged both the predicate-violent-felony determination and the related base offense level under § 2K2.1, arguing the NY offenses do not satisfy ACCA’s violent-felony or the Guidelines’ crime-of-violence definitions.
The Sixth Circuit vacated and remanded for resentencing, holding the NY third-degree burglary and attempted third-degree burglary are divisible offenses and require the modified categorical approach.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether NY third-degree burglary and attempted burglary are violent felonies under ACCA.	Prater contends they are not categorically violent felonies.	The government maintains they qualify as violent felonies under ACCA.	They are not categorically violent felonies; remand for proper category determination.
Whether the district court properly preserved Prater’s violent-felony objection for appeal.	Prater preserved the objection in the PSR, and the district court addressed it on the merits.	The objection was not sufficiently specific to preserve the claim for appeal.	The violent-felony claim was preserved; de novo review applies to the legal conclusions.
What standard governs review of the ‘crime of violence’ determination under the Guidelines.	Prater argues plain-error review; the district court’s reliance on the PSR was error.	The Government contends de novo review applies where preserved; plain error for the unpreserved claim.	Violent-felony analysis is reviewed de novo; the residual-clause analysis for plain error is nuanced.
Whether the residual-clause analysis for New York third-degree burglary is satisfied.	The residual clause does not categorically include divisible forms like NY third-degree burglary.	The government argues some forms pose similar risk to generic burglary.	The NY statute is divisible; the court vacates and remands for Shepard-document-based classification.

Descamps v. United States, 133 S. Ct. 2276 (U.S. 2013) (divisible statutes require the modified categorical approach)
Taylor v. United States, 495 U.S. 575 (U.S. 1990) (definition of generic burglary; elements-based approach)
Shepard v. United States, 544 U.S. 13 (U.S. 2005) (limits on relying on extrinsic records; use of Shepard documents)
James v. United States, 550 U.S. 192 (U.S. 2007) (residual-clause risk analysis for attempt offenses)
Mosley, 575 F.3d 603 (6th Cir. 2009) (circuit stay on residue analysis; require elements-based inquiry)
Andrello, 9 F.3d 247 (2d Cir. 1993) (recognizes residual-clause possibility for non-generic burglary; criticized for not applying modified categorical approach)
Lynch, 518 F.3d 164 (2d Cir. 2008) (non-generic burglary as crime of violence; need modified categorical approach)