UNITED STATES of America, Plaintiff-Appellee, v. Nathan E. GUNDY, Defendant-Appellant.
No. 14-12113
United States Court of Appeals, Eleventh Circuit.
Date Filed: 11/23/2016
842 F.3d 1156
The en banc Court remanded to the panel all outstanding issues in this appeal, and we ordered and received supplemental briefing from the parties. The original panel opinion reviewed the “one-line decision of the Supreme Court of Georgia denying Wilson‘s certificate of probable cause ... because it is the final decision on the merits.” Wilson v. Warden, Ga. Diagnostic Prison, 774 F.3d 671, 678 (11th Cir. 2014) (internal quotation marks omitted), reh‘g en banc granted, op. vacated, No. 14-10681 (11th Cir. July 30, 2015). And the panel “[could] not say that the decision of the Supreme Court of Georgia to deny Wilson‘s petition ... ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.‘” Id. at 681 (quoting
AFFIRMED.
Before HULL and JILL PRYOR, Circuit Judges, and CONWAY,* District Judge.
HULL, Circuit Judge:
Defendant Nathan E. Gundy appeals his conviction and 288-month sentence for being a convicted felon in possession of firearms. The district court determined that Gundy was an armed career criminal under the Armed Career Criminal Act (“ACCA“),
After review of the record and with the benefit of oral argument, we affirm Gundy‘s conviction and sentence.
I. BACKGROUND
In December 2013, a jury found Gundy guilty on one count of being a convicted felon in possession of firearms, in violation of
The Presentence Investigation Report (“PSI“) recommended a base offеnse level of 24, pursuant to U.S.S.G. § 2K2.1. The PSI recommended (1) a 2-level increase under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three firearms,1 (2) a 2-level increase under U.S.S.G. § 2K2.1(b)(4)(A) because the firearms Gundy possessed were stolen, and (3) a 4-level increase under U.S.S.G. § 2K2.1(b)(6)(B) because Gundy possessed the firearms in connection with another felony offense. These increases yielded an adjusted offense level of 32.
Gundy had numerous prior felony convictions, 17 criminal history points, and a criminal history category of VI, even without a
The PSI, however, reported that Gundy was an armed career criminal under
Due to his status as an armed career criminal under
* Honorable Anne C. Conway, United States District Judge, for the Middle District of Florida, sitting by designation.
As to the PSI, Gundy objected to the 2-level increase for possessing stolen firearms and the 4-level increase for possessing firearms in connection with another felony. He also objected to his designation as an armed career criminal on the ground that only two of his burglary convictions involved the burglary of a residence. According to Gundy, only “burglary of a residence” qualifies as a “violent felony” under the ACCA, and, therefore, he did not have the requisite three violent felony convictions to qualify as an armed career criminal.
At the April 2014 sentencing hearing, the district court overruled Gundy‘s objection to the 2-level increase for possessing stolen firearms, but sustained Gundy‘s objection to the 4-level increase for possessing the firearms in connection with another felony.
The district court also overruled Gundy‘s objection to his designation as an armed career criminal. The district court expressly deferred to the reasoning of the prоbation officer set forth in an addendum to the PSI. In that addendum, the probation officer concluded that Gundy was an armed career criminal because the charging documents in each of Gundy‘s burglary convictions “reveal[ed] that each of those offenses [met] the elements of generic burglary (i.e., [Gundy] unlawfully entered a building or structure with the intent to commit a theft“).
Because the district court sustained Gundy‘s objection to the 4-level increase, Gundy‘s total offense level became 33 under U.S.S.G. § 4B1.4(b). With a total offense level of 33 and a criminal history category of VI, Gundy‘s advisory guidelines range was 235 to 293 months’ imprisonment. After considering the advisory guidelines range and the factors set forth in
Gundy makes several arguments challenging the validity of his
II. THE ACCA
A felon in possession of a firearm who has at least three prior convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” is subject to an enhanced statutory penalty under the ACCA.
- has as an element the use, attempted use, or threatened use of physical force against the person of another; or
- is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
This case involves the enumerated crimes clause, which defines “violent felony,” in part, as “burglary, arson, or extortion” and crimes that “involve[] use of explosives.”
III. DISCUSSION
A. Elements-Based Analysis of a Prior Crime
The United States Supreme Court most recently articulated how to interpret and apply the ACCA‘s enumerated crimes provision in Mathis v. United States, 579 U.S. 500, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). In Mathis, the Supreme Court recognized that its opinion in Taylor “set out the essential rule governing ACCA cases more than а quarter century ago,” which is that “[a]ll that counts under the [ACCA] ... are the elements of the statute of conviction.” Mathis, 579 U.S. at —, 136 S.Ct. at 2251 (quotation marks omitted). “That simple point became a mantra” in the Supreme Court‘s subsequent ACCA decisions. Id. Indeed, the Supreme Court in Mathis pointed out that this “essential rule” has governed all of its ACCA decisions since Taylor:
At the risk of repetition (perhaps downright tedium), here are some examples. In Shepard: ACCA “refers to predicate offenses in terms not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of crimes.” 544 U.S. at 19, 125 S.Ct. 1254 (alteration in original). In James v. United States: “[W]e have avoided any inquiry into the underlying facts of [the defendant‘s] particular offense, and have looked solely to the elements of [burglary] as defined by [state] law.” 550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes v. United States: “[W]e consider [only] the elements of the offense [,] without inquiring into the specific conduct of this particular offender.” 564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (quoting James, 550 U.S. at 202, 127 S.Ct. 1586; emphasis in original). And most recently (and tersely) in Descamps: “The key [under ACCA] is elements, not facts.” 570 U.S. —, —, 133 S.Ct. at 2283.
Mathis thus drove home the point that focusing on the elements of the statute of conviction is, and always has been, the essential principle governing ACCA cases: “For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements.” Id. at 2257.
Mathis also instructs that “[t]he comparison of elements ... is straightforward when a statute sets out a single (or ‘indivisible‘) set of elements to define a single crime.” Id. at 2248. In such cases,
Mathis notes, however, that some criminal statutes do not set out a single crime but “have a more complicated (sometimes called ‘divisible‘) structure.” Id. In fact, “[a] single statute may list elements in the alternative, and thereby define multiple crimes.” Id. at 2249. If the statute sets out multiple crimes, it is “divisible.” See id. Faced with a “divisible” statute, courts must identify which crime in the statute formed the basis of the defendant‘s conviction. See id. The Mathis Court stressed that “[t]o address that need, this Court approved the ‘modified categorical approach’ for use with statutes having multiple alternative elements.” Id. Under the modified categorical approach, “a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. Courts must then compare the elements of that identified crime to the elements of the relevant generic offense. See id.
B. Disjunctive Phrasing
Notably, the Supreme Court in Mathis explained more fully how courts should evaluate criminal statutes with “disjunctive phrasing.” Id. at 2249, 2253. Specifically, a state‘s criminal statute may use terms like “or” that can signal either (1) the listing of alternative elements, thus creating multiple crimes, or (2) the listing of alternative means of committing a single offense with an indivisible set of elements. See id. at 2249.
If the statute lists alternative “elements,” it is considered “divisible,” and courts may employ the modified categorical approach to determine the elements of the defendant‘s conviction. Id. But if a statute merely lists “various factual means” of committing a single offense, then the statute is considered “indivisible,” and that indivisible set of elements will be the basis of the defendant‘s conviction. See id. And if that indivisible statute “sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form.” Descamps v. United States, 570 U.S. —, —, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013).
In Mathis, the Supreme Court also instructed that “[t]he first task for a sentencing court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means.” Mathis, 579 U.S. at —, 136 S.Ct. at 2256. This determination—“elements or means?“—is a “threshold inquiry.” Id. Thus, in an enumerated crimes ACCA case involving a statute with disjunctive or alternative phrasing, courts must first determine (1) whether that statutory alternative phrasing lists multiple alternative elements, thereby creating multiple offenses in a divisible statutory structure, or (2) whether that statutory alternative phrasing merely lists various factual means of satisfying one or more of the statute‘s otherwise indivisible set of elements.
C. Elements or Means?
More significantly though, the Supreme Court in Mathis added to its ACCA precedent by instructing courts how to discern “elements” from “means.” “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 marks omit-
The Supreme Court in Mathis enumerated several tools courts may use to deter-mine whether a statute‘s “listed items are elements or means” or, put another way, whether a statute is “divisible.” Id. at 2256. In doing so, the Supreme Court clarified when and how courts may look beyond the language of the statute, and may even go to parts of the state court record, to determine whether a statute lists alternative elements or alternative means. Id. at 2256-57.
As one tool, the Supreme Court explained that “the statute on its face may resolve the issue.” Id. For example, “[i]f statutory alternatives carry different punishments, then under Apprendi they must be elements.” Id. “Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then it includes only a crime‘s means of commission.” Id. (citing United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014)). Additionally, “a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).” Id.
As another tool, the Supreme Court stated that in conducting the elements-versus-means inquiry, federal sentencing courts can look to state court decisions interpreting an alternatively phrased statute for guidance. Id. If a precedential state court decision makes clear that a statute‘s alternative phrasing simply lists “alternative methods of committing one of-fense,” such that “a jury need not agree” on which alternative method the defendant committed in order to sustain a conviction, then the statute is not divisible. Id. (quotation marks and alterations omitted). “Armed with such authoritative sources of state law, federal sentencing courts can readily determine the nature of an alternatively phrased list.” Id.
As a third tool, the Supreme Court stated that “if state law fails to provide clear answers, federal judges have another place to look: the record of a prior conviction itself.” Id. The Supreme Court explained that this “peek” at the record documents “is for the sole and limited purpose of determining whether the listed items are elements of the offense.” Id. at 2256-57 (quotation marks and alterations omitted). This is a “peek” to answer the threshold means-or-elements question (i.e. the divisibility issue) and is not the full-blown modified categorical approach.
In explaining this “peek,” the Supreme Court in Mathis said, (1) ”Descamps previously recognized just this way of discerning whether a statutory list contains means or elements,” and (2) that the Descamps Court “noted that indictments, jury instructions, plea colloquies and plea agreements will often reflect the crime‘s elements and so can reveal—in some cases better than state law itself—whether a statutory list is of elements or means.” Id. at 2257 n.7 (quotation marks omitted). The Supreme Court then instructed: “Accordingly, when state law does not resolve the means-or-elements question, courts should resort to the record documents for help in making that determination.” Id. (quotation marks and alterations omitted).
Most helpfully though, the Supreme Court in Mathis gave contrasting examples
Finally, the Supreme Court acknowledged that “such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy Taylor‘s demand for certainty when determining whether a defendant was convicted of a generic offense.” Id. (quotation marks omitted). However, the Supreme Court concluded that “between those documents and state law, that kind of indeterminacy should prove more the exception than the rule.” Id. This makes good sense because state court indictments often will charge only one of the alternative terms, thereby indicating that a statute is divisible.
We now apply the principles and tools outlined in Mathis to this case.
D. Georgia‘s Burglary Statute is Broader than Generic Burglary
We first identify the elements of generic burglary. The generic, contemporary definition of burglary consists of these elements: (1) an unlawful or unprivileged entry into, or remaining in, (2) a building or other structure, (3) with intent to commit a crime therein. See Howard, 742 F.3d at 1342; Mathis, 579 U.S. at —, 136 S.Ct. at 2248.
Next, we examine whether Georgia‘s burglary statute has these elements. At the time of Gundy‘s seven prior felony burglary offenses in 2001, 2005, and 2006, Georgia‘s burglary statute provided as follows:
A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof....
The salient question, then, is whether
Before examining the Georgia burglary statute, it is also helpful to review the Iowa burglary statute discussed in Mathis and the Alabama burglary statute discussed in Howard.
E. Iowa and Alabama Burglary Statutes
At issue in Mathis was the Iowa Code, which defines burglary in
Then, in a separate statute,
In Mathis, the Supreme Court concluded that the Iowa burglary statute in
Similarly, in Howard, the Alabama statute that created the crime of burglary used a single locational element of “building.”4
Then, in a separate statute in
In Howard, this Court explained why the Alabama burglary statute was not divisible. The Alabama statute did not “set[] out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.” Howard, 742 F.3d at 1348. “Instead, Alabama Code § 13A-7-1(2) pro-vides one definition of building and then includes a non-exhaustive list of things that fall under that definition.” Id. In Howard, this Court further pointed out that the word “includes” in
F. Georgia‘s Burglary Statute
We now turn to the text of Georgia‘s burglary statute. “[S]entencing courts should usually be able to determine wheth-er a statute is divisible by simply reading its text....” Howard, 742 F.3d at 1346.
In contrast to Iowa‘s statute in Mathis and the Alabama statute in Howard, the text of the Georgia burglary stat-ute in
Rather, the Georgia burglary statute, that creates the crime of burglary, uses alternative locational elements.
the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another
or
within any other building, railroad car, aircraft, or any room or any part thereof.
This is why under Georgia law a prosecutor must select, identify, and charge the specific place or location that was burgled. For example, the Georgia Court of Appeals has held that a burglary indictment must charge the particular place or premises burgled and the specific location of that place or premises. See Morris v. State, 166 Ga. App. 137, 303 S.E.2d 492, 494 (1983) (stating that “where the defendant is charged with burglary, the indictment must specify the location of the burglary” and concluding that the indictmеnt was sufficient where it charged a “building,” identified as “the Financial Aid Office and Alumni Office, located at Fort Valley State College, Fort Valley, Peach County, Georgia“); State v. Ramos, 145 Ga. App. 301, 243 S.E.2d 693, 693 (1978) (stating it is not necessary to prove “the specific place” to obtain a theft-by-taking conviction, but it is necessary to prove the “specific location” to obtain a burglary conviction); State v. Green, 135 Ga. App. 622, 218 S.E.2d 456, 457 (1975); Chester v. State, 110 Ga. App. 733, 140 S.E.2d 52, 53 (1964) (“It must be alleged and proved in an indictment for burglary that there was a breaking and entering of one of the classes of buildings set out in the statute.“); Kidd v. State, 39 Ga. App. 30, 146 S.E. 35, 35 (1928) (holding that the indictment was sufficient where it identified the location burgled as the pro-tected structure of “railroad cars“).
The U.S. Supreme Court has told us that “[a] prosecutor charging a violation of a divisible statute must generally select the relevant element from the list of alternatives.” Descamps, 570 U.S. at —, 133 S.Ct. at 2290. That the Georgia prosecutor must select and identify the locational element of the place burgled—whether the place burgled was a dwelling, building, railroad car, vehicle, or watercraft—is the hallmark of a divisible statute. Indeed, in every case cited by Gundy and the govern-ment, the indictment specified the type of place or premises burgled. See, e.g., Weeks v. State, 274 Ga. App. 122, 616 S.E.2d 852 (2005) (a “dwelling house“); Davis v. State, 308 Ga. App. 7, 706 S.E.2d 710, 714 (2011) (a “dwelling house“); Smarr v. State, 317 Ga. App. 584, 732 S.E.2d 110, 114-15 (2012) (a “building” that served as a gas station); Morris, 303 S.E.2d at 494 (a “building” used as a “Financial Aid Office and Alumni Office“).
That the prosecutor must select and identify the relevant statutory locational element is well illustrated by the Georgia court‘s decision in DeFrancis v. Manning, 246 Ga. 307, 271 S.E.2d 209 (1980). As quoted above, one of the alternative locational elements in the Georgia statute is a “vehicle ... designed for use as the dwell-ing of another.”
For all of the above reasons, we conclude that the alternative locational elements in the Georgia statute are divisible. See United States v. Martinez-Garcia, 625 F.3d 196, 198 (5th Cir. 2010) (concluding that the Georgia burglary statute in
G. The Elements of Gundy‘s Prior Burglary Convictions are Generic
Our final task is to determine which of the alternative elements in Georgia‘s burglary statute formed the basis of Gundy‘s prior burglary convictions and whether those elements match the generic definition of burglary. Having concluded that Georgia‘s burglary statute is divisible, we may use the modified categorical approach. Mathis, 579 U.S. at —, 136 S.Ct. at 2249. Under that approach, we look to “a limited class of documents (for example, the indictment, jury instructions or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id. These are known as Shepard documents. Id.; Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005).
The indictment for each one of Gundy‘s prior Georgia burglary convictions charged the type of place and the address of each burgled location.8 Two indictments charged that Gundy unlawfully, and with the intent to commit theft therein, entered a “dwelling house“: (1) “the dwelling house of another, to wit: Chiffon Jones, located at 403 Grand Street; Sandersville, Georgia;” and (2) “the dwelling house of another, to wit: McArthur Jordan, located at 321 Ty-
Accordingly, Gundy‘s state court indictments make clear that Gundy‘s Georgia burglary convictions involved these three elements: (1) an unlawful entry (2) into a dwelling house or building (3) with intent to commit a crime therein. See
H. Dissent‘s Discussion of Divisibility
The dissent relies heavily on Lloyd v. State, 168 Ga. App. 5, 308 S.E.2d 25 (1983), but that case had nothing to do with the locational element, which the Georgia Supreme Court in DeFrancis told us is an “essential element.” 246 Ga. at 308, 271 S.E.2d 209. The sole issue in Lloyd was whether the evidence was sufficient to prove “lack of authority on the defendant‘s part to enter the building.” Lloyd, 308 S.E.2d at 25. The officer testified that “[t]he front door of the warehouse had been pried open.” Id. The Lloyd court stated: “there are two essential elements which must be established by the State: 1) lack of authority to enter the dwelling or building; 2) intent to commit a felony or theft.” Id. (emphasis added). The Lloyd court concluded that the evidence in the officer‘s testimony “was sufficient to show the defendant‘s lack of authority to enter the building.” Id. at 26. When placed in context, the two-element statement in Lloyd is about two elements of “lack of authority to enter” and “intent.” See id. at 25. There was no issue in Lloyd about the location burgled or the essential locational element required under the Georgia statute.
Rather, the Georgia Supreme Court in DeFrancis tells us that the location burgled is a third “essential element” and that the locational element must be identified and charged with particularity in the indictment. See 246 Ga. at 308, 271 S.E.2d 209.
In any event, as to its divisibility analysis, the dissent acknowledges that “if state
III. CONCLUSION
In light of the foregoing, we affirm Gundy‘s conviction and sentence.
AFFIRMED.
JILL PRYOR, Circuit Judge, dissenting:
The question we confront today is whether Nathan Gundy‘s prior burglary convictions in Georgia provide a basis for the enhanced federal sentence he currently serves. The majority and I agree on the basic framework for answering this question and even on how that framework applies here, up to a point. But we differ sharply in our views of Georgia law re-garding the elements of the crime of burglary.
The majority and I agree that the Georgia burglary statute under which Mr. Gundy previously was convicted sweeps more broadly than the generic crime of burglary that can serve as a basis for an enhanced sentence. I cannot agree, though, with the balance of the majority‘s analysis. I dissent because we cannot, consistent with Supreme Court and our own precedent, divide and narrow the Georgia statute in a way that would permit us to construe Mr. Gundy‘s burglary convictions as authoriz-ing the term of incarceration he now serves. And I dissent because the majority‘s analysis affirming Mr. Gundy‘s enhanced sentence has serious implications far beyond this case. The majority‘s misin-terpretation of Georgia law will decide the fate of countless individuals who stand to serve unjustly expanded prison terms as a result.
The district court ruled that Mr. Gundy‘s prior Georgia burglary convictions each constituted a “violent felony” and thus support an enhanced sentence under the Armed Career Criminal Act, (“ACCA“),
The majority and I agree that with its inclusion of vehicles, railroad cars, watercraft, and aircraft as types of locations that can be burglarized, Georgia‘s burglary statute is broader than the generic crime of burglary, which applies only to structures. Indeed, in considering a similarly broad state statute, Mathis held that “vehicles” are not structures and thus fall outside the scope of generic burglary. See 136 S.Ct. at 2250. But turning to the question of whether these alternative types of locations are elements of the crime of burglary in Georgia or merely means of committing it, the majority and I part ways. I disagree that the burglary statute‘s text and structure support the majority‘s conclusion that the types of locations the statute lists are elements rather than means. This conclusion ignores the Supreme Court‘s guidance and the plain meaning of the Georgia statute. I also disagree that Georgia case law supports the majority‘s conclusion. To the contrary, this case law unambiguously defines the elements of the crime of burglary, and the different types of locations that can be burglarized are not separate elements. The majority errs in determining that “burglary of a dwelling” and “burglary of a building” are separate crimes in Georgia.
Even if I were to accept, for the sake of argument, that Georgia law is ambiguous on whether the different types of locations that can be burglarized are elements or means of committing the offense, the inquiry would not еnd there. Mathis instructs courts considering statutes that are ambiguous in this respect to “peek” at the record documents of prior convictions “for the sole and limited purpose of determining whether the [statute‘s] listed items are elements of the offense.” 136 S.Ct. at 2256-57 (internal quotation marks and alterations omitted). But in this case, those documents leave us unable to “satisfy [the] demand for certainty when determining whether a defendant was convicted of a generic offense” that can serve as an ACCA predicate. Id. at 2257 (internal quotation marks omitted). After all, of the two locational terms listed in Mr. Gundy‘s indictments, one does not even appear in Georgia‘s burglary statute and thus cannot constitute an element. Mr. Gundy‘s indictments therefore fail to demonstrate that the different types of locations where the burglaries occurred were elements that the jury had to find beyond a reasonable doubt. In my view, these points lead to only one possible conclusion: Georgia‘s burglary statute is broader than generic burglary, and is indivisible; it cannot be a violent felony under ACCA. I would re-verse and remand for the district court to resentence Mr. Gundy without an ACCA enhancement.
I. DISCUSSION
The analytical framework on which the majority and I agree compels the conclusion that the Georgia burglary statute un-der which Mr. Gundy was convicted is indivisible. The statute defines burglary as follows:
A pеrson commits the offense of burglary when, without authority and with the
intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof....
Second, because the majority reads Georgia law to reach the opposite conclusion, I assume for the sake of argument that state law is ambiguous on the elements-versus-means question and, as Mathis instructs, look beyond it to the record of Mr. Gundy‘s convictions for the answer. But the record, too, is inconclusive. Thus, even assuming Georgia law is ambiguous such that we can look to Mr. Gundy‘s record at all, we would still lack the “certainty” required to determine that the various types of locations listed in Georgia‘s statute are elements rather than means. Mathis, 136 S.Ct. at 2257 (internal quotation marks omitted). Without that certainty, a conviction under the statute cannot qualify as a violent felony under ACCA.
A. Georgia Law Establishes the Georgia Burglary Statute‘s Indivisibility.
Georgia‘s courts have set forth thе elements of burglary, making it clear that the state‘s burglary statute is indivisible. The Georgia Court of Appeals declared in a precedential decision that it is “readily apparent there are two essential elements [of the crime of burglary] which must be established by the State: 1) lack of authority to enter the dwelling or building; 2) intent to commit a felony or theft.” Lloyd v. State, 168 Ga. App. 5, 308 S.E.2d 25, 25 (1983) (emphasis added). Entering without authority either a “dwelling or building” is part of the same “essential element[],” a single element encompassing the types of locations that can be burglarized.2 Id.
So why does the Georgia courts’ grouping of “dwelling” and “building” into a single element necessarily answer the elements-versus-means question with respect to vehicles, railroad cars, and watercraft? It does so for two reasons. First, the statute‘s use of the term “dwelling” itself includes locations other than the type of structures that generic burglary encompasses. In Georgia, a person commits the crime of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within “... any building, vehicle, railroad car,
Second, in the statute “building” appears twice, both times as part of a series. Both series include types of locations that generic burglary excludes. As a matter of syntax and logic, if one item in the series, “building,” is not a separate element be-cause the Georgia courts tells us it is part of the same element as “dwelling,” then the others in the series are not separate elements either. For these reasons, Lloyd‘s statement of burglary‘s elements, which groups “building” and “dwelling” together, compels the conclusion that the location types listed in the Georgia burglary statute are alternate means rather than elements.
An examination of Georgia jury instructions confirms Lloyd‘s statement of burglary‘s elements. The language used in jury instructions is significant because it must always include the crime‘s elements, that is, “what the jury must find beyond a reasonable doubt to convict the defendant.” Mathis, 136 S.Ct. at 2248. Georgia courts consistently have upheld jury in-structions listing “building or dwelling” as part of a single element. See, e.g., Dukes v. State, 264 Ga. App. 820, 592 S.E.2d 473, 477 (2003) (upholding against unspecified claim of error jury instruction that “it‘s only necessary to prove burglary in Georgia that ... the accused did, without authority, enter a building or dwelling house of another with the intent to commit the alleged felony“); Hart v. State, 238 Ga. App. 325, 517 S.E.2d 790, 792-93 (1999) (deеm-ing “sufficient to inform the jury of the essential elements of” burglary a jury instruction that included “enters in a build-ing or dwelling house of another“); see also, e.g., Long v. State, 307 Ga. App. 669, 705 S.E.2d 889, 893-94 (2011) (calling “complete and correct” a jury instruction that included “enters any building or dwelling place of another“). Indeed, Geor-gia‘s pattern jury instructions for burglary state that a person commits burglary when “without authority, that person enters ... any building or dwelling place of another ... with the intent” to commit theft or another felony, GAJICRIM 2.62.10 (4th ed. 2016); id. 2.62.20 (4th ed. 2016).3 Georgia jury instructions and the cases approving them thus confirm Lloyd‘s statement of the burglary elements. That is, burglary of a dwelling and burglary of a building are not separate crimes.
The majority dismisses Lloyd‘s clear statement of law, asserting that the case “had nothing to do with the locational element” at issue here. Maj. Op. at 1169. True, the types of places that could be burglarized were not at issue in Lloyd. But accepting the majority‘s position requires us to assume that the Georgia Court of Appeals meant something other than what it said when it described the elements of the crime. And the numerous cases ap-proving jury instructions with language like Lloyd‘s confirm that it correctly stated burglary‘s elements.
First, the majority contends that the statute‘s use of the disjunctive and lack of a single locational term with a separate definition section establish its divisibility. Relying solely on the word “or,” and making creative use of spacing to amplify its point, the majority determines that the statute “has three subsets of different locational elements, stated in the alternative and in the disjunctive.” See Maj. Op. at 1167. The majority then contrasts this structure with those of the state burglary statutes held to be indivisible in Mathis, 136 S.Ct. at 2250 (Iowa), United States v. Lockett, 810 F.3d 1262, 1269-70 (11th Cir. 2016) (South Carolina), and United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014) (Alabama). See Maj. Op. at 1166-67, 1166 n.5. The majority notes that each of these other statutes included “a single locational element” and then in a separate section or statute defined that term with a list of alternative means of committing the crimе. Id. Georgia‘s burglary statute, how-ever, contains no single locational element with a separate definitions section, and so the majority posits its list of alternate locations must be elements rather than means. Maj. Op. at 1167.
As the majority acknowledges, Maj. Op. at 1162, Mathis makes clear that alternative phrasing is a necessary—but by no means sufficient—condition to read a statute as setting out alternative elements. See 136 S.Ct. at 2256 (“The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.“). Mathis then lists two attributes of an alternatively phrased statute that would confirm its divisibility. First, “[i]f statutory alternatives carry different punishments, then under Apprendi4 they must be elements.” Id. Second, “a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means).” Id. Neither is present in this case, however. Absent these attributes, or something equally compelling, alternate phrasing is neutral with respect to the elements-versus-means inquiry.
Although state statutes with a single locational element defined separately have been held to be indivisible in Mathis, Lockett, and Howard, there is no truth to the converse, that the lack of a single locational element with a separate definition section means a disjunctively phrased statute is divisible. Indeed, one of our sister circuits recently held a statute with disjunctive language and without a separate definition section to be indivisible. See United States v. Barcenas-Yanez, 826 F.3d 752 (4th Cir. 2016) (holding Texas aggravated assault statute was indivisible
Second, the majority asserts as support-ing its textual interpretation that the burglary statute sets out a “finite list of specific structures.” Maj. Op. at 1167. This finite list—along with the disjunctive phrasing and lack of a single locational term with a separate definition section dis-cussed above—leads the majority to the conclusion that Georgia‘s burglary statute sets out “multiple locational elements effectively creating several different crimes.” Maj. Op. at 1167.
The wording of Georgia‘s burglary statute, however, contradicts the majority‘s assertion. The statute includes among its list of locations that can be burglarized “other such structure[s] designed for use as the dwelling of another.”
Third, the majority argues that Georgia case law concerning the adequacy of indictments confirms its interpretation. It con-tends that because Georgia prosecutors must specify the location of a burglary in the indictment, the different locations must be elements. This argument confuses location (e.g., “the Financial Aid Office and Alumni Office, located at Fort Valley State College, Fort Valley, Peach County, Georgia“), Morris v. State, 166 Ga. App. 137, 303 S.E.2d 492, 494 (1983), with type of location (e.g., a “building“). Id. It is true that an indictment charging burglary must identify the specific location and ownership of the allegedly burglarized place. See id. But Georgia law imposes no requirement that an indictment include the type of location burglarized. Oftentimes, as in the case of the Financial Aid Office building in Morris, an indictment will identify both. But it need not do so.6 For example, the Georgia Court of Appeals approved of “So-
More fundamentally, the majority misapprehends the purpose of requiring the burglary‘s location to be included in indictments. The majority speculates that the multiple types of locations listed in the Georgia burglary statute must be “why under Georgia law a prosecutor must select, identify, and charge the specific place or location that was burgled.” Maj. Op. at 1167. This speculation lacks support. Rather, as a case the majority cites makes clear, an indictment must include the location burglarized in order “to give the defendant ample opportunity to prepare a defense.” Morris, 303 S.E.2d at 494. The many indictment cases on which the majority relies never considered whether the types of locations listed in Georgia‘s burglary statute are alternative elements or means of committing the crime because these cases were concerned only with the need to “inform the accused as to the charges against him so that he may present his defense and not ... be taken by surprise” and to “protect the accused against another prosecution for the same offense.” Smarr v. State, 317 Ga. App. 584, 732 S.E.2d 110, 115 (2012).
One of these cases deserves particular attention. The majority argues that DeFrancis v. Manning, 246 Ga. 307, 271 S.E.2d 209 (1980), demonstrates “[t]hat the prosecutоr must select and identify the relevant statutory locational element” when charging Georgia burglary. Maj. Op. at 1167. I take it that by this the majority means that the prosecutor must specify whether the store, restaurant, or dwelling burglarized was in a building or a railroad car. But DeFrancis demonstrates no such thing. In DeFrancis, the Georgia Supreme Court upheld a lower court‘s decision overturning a defendant‘s conviction for burglarizing a truck. 271 S.E.2d at 210. The appellate court held the conviction was invalid because Georgia law only criminalized entering without authority “any ... vehicle ... designed for use as the dwelling of another,” id. (quoting
The majority‘s many indictment cases are unhelpful because they offer no answer to thе determinative question: at trial, what must a Georgia jury find beyond a reasonable doubt to convict the defendant of burglary? See Mathis, 136 S.Ct. at 2248. Lloyd and the many cases approving jury instructions similarly listing burglary‘s elements, by contrast, answer that very question: the jury must find that the defendant entered a building or dwelling, but not whether it was a building or a dwelling or what type of dwelling. The Georgia burglary statute thus is indivisible as between buildings and all types of dwellings, including vehicles, boats, and railroad cars.
B. The Record of Mr. Gundy‘s Convictions Fails to Prove Georgia Burglary Is Divisible.
We need not (indeed, may not) look past clear Georgia law, which should end our inquiry. But given our disagreement about the import of the cases it cites and the cases I cite above, the majority and I can agree that perhaps Georgia law is at least ambiguous on the elements-versus-means question. The Supreme Court advised us in Mathis that “if state law fails to provide clear answers [about a statute‘s divisibility], federal judges have another place to look: the record of a prior conviction itself.” 136 S.Ct. at 2256. Unfortunately,
Mr. Gundy‘s burglary indictments charge him with burglarizing either a “dwelling house” or a “business house.” The two indictments charging Mr. Gundy with burglarizing a “dwelling house” cоhere with the majority‘s hypothesis that “dwelling house” is one of several alternative locational elements in the statute, meaning that the statute is divisible among the types of locations that can be burglarized. The term “dwelling house” does, after all, appear in the list of alternative locations in the statute. See
But the other indictments charging Mr. Gundy with burglarizing a “business house” seem to contradict the majority‘s hypothesis. Nowhere does
Mathis instructs courts what to do when state law and the records of a conviction are inconclusive regarding a statute‘s divisibility. When these sources do not “speak plainly,” courts “will not be able to satisfy Taylor‘s demand for certainty when determining whether a defendant was convicted of а generic offense.” Mathis, 136 S.Ct. at 2257 (internal quotation marks omitted); see also Maj. Op. at 1164 (recognizing this limitation). In my view, state law does speak plainly in this case, and as a result, I would hold Georgia‘s burglary statute to be indivisible. But even rejecting clear Georgia case law, the majority acknowledges that perhaps Georgia law is at least
II. CONCLUSION
Today, contrary to state case law by which we are bound, the majority declares Georgia‘s burglary statute divisible and therefore capable of qualifying as a violent felony under
UNITED STATES of America, Plaintiff-Appellee,
v.
Uri AMMAR, Defendant-Appellant.
No. 13-12044
United States Court of Appeals,
Notes
Didn‘t Mathis expressly authorize inquiry into the language of a defendant‘s indictments? Yes and no. Yes, Mathis allowed recourse to record documents like indictments, but not, in my view, in a way that would allow a defendant‘s indictments alone to prove conclusively that a statute is divisible. To be sure, Mathis provided relatively little guidance to cоurts taking the “peek” it authorized into record documents. Id. at 2256. The opinion included three examples of situations where such documents could help answer the divisibility question. The first two examples described circumstances demonstrating conclusively that a statute is indivisible. In contrast, the third example outlined a scenario indicating that a statute could be divisible: “[A]n indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.” Id. at 2257. This third example is quite different from the first two—both of which employed deductive methods to determine that a statute was indivisible—because it relies on reasoning by induction. Just because the indictment in one case lists a particular statutory term to the exclusion of others does not necessarily mean that term is an element. If any jury in the state validly could convict a defendant without deciding among multiple statutory terms, then those terms are means, not elements. By the same token, a prosecutor‘s decision to include only one of those terms in a given indictment does not necessarily mean that term is an element. Indeed, Mathis instructed us on the relative strength of the conclusions to be drawn from its three examples. Where the first two examples providеd “as clear an indication as any” that a statute was indivisible, the third example “could indicate” that a statute is divisible. Id. (emphasis added). What‘s more, the meager record we have in this case would render this third example even more equivocal if we found it applied here. Mathis‘s third example concerns “an indictment and jury instructions.” Id. (emphasis added). The inclusion of jury instructions is significant because they must always include the crime‘s elements, that is, “what the jury must find beyond a reasonable doubt to convict the defendant.” Id. at 2248. Here, because Mr. Gundy pled guilty to each of his prior burglary offenses, “the closest analogs to jury instructions would be ... the statement of factual basis for the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” United States v. Shepard, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Unfortunately, though, the only records we have of Mr. Gundy‘s guilty pleas are his signatures on the various indictments charging him. The record before us includes neither jury instructions nor plea colloquies. Mathis in no way suggests that indictments alone could be enough to indicate with sufficient “certainty” to satisfy Taylor that the statute is divisible. Mathis, 136 S.Ct. at 2257 (internal quotation marks omitted). In my view, one person‘s indictments, standing alone, are simply too inconclusive to prove a statute divisible.