United States v. McLeod, No. 14-4766 (4th Cir. 2015)
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Defendant plead guilty to possession of a firearm by a convicted felon and was sentenced to 188 months' imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). On appeal, defendant argued that because the predicate offenses were not charged in the indictment in this case, his conviction for simply violating section 922(g)(1) did not support the sentence imposed, violating his Fifth and Sixth Amendment rights. Defendant also argued that his 1998 South Carolina convictions for second-degree burglary did not qualify as “violent felonies” under the ACCA. Although the court concluded that defendant's first argument is foreclosed by Almendarez-Torres v. United States, the court concluded that the evidence that the government offered with respect to at least four of his five burglary convictions did not show that they qualified as “violent felonies” under ACCA because the government was unable to demonstrate that the object of each conviction was necessarily a building or structure, as distinct from a vehicle, boat, or airplane. Accordingly, the court affirmed the conviction but vacated the sentence, remanding for resentencing.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4766 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GREGORY MCLEOD, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Florence. Mary G. Lewis, District Judge. (4:13-cr-01013-MGL-1) Argued: September 17, 2015 Decided: October 30, 2015 Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges. Affirmed in part, vacated in part, and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Keenan joined. ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Florence, South Carolina, for Appellant. Benjamin Neale Garner, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee. NIEMEYER, Circuit Judge: After firearm Gregory by a McLeod convicted pleaded felon, guilty in to possession violation of 18 of a U.S.C. § 922(g)(1), the district court sentenced him to 188 months’ imprisonment, having applied a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). ACCA mandates a 15-year minimum sentence for defendants with three previous “violent felony” convictions, including convictions for burglary. To satisfy the predicate convictions requirement of ACCA, the district court relied on McLeod’s five convictions in 1998 for committing second-degree burglary in Dillon, South Carolina, in violation of South Carolina Code § 16-11-312. The indictment in each of those cases charged McLeod with breaking and entering a commercial building with the intent to commit a crime. On appeal, McLeod contends that the district court erred in applying the ACCA enhancement in two respects. First, he contends that because the predicate offenses were not charged in the indictment in this case, his conviction for simply violating § 922(g)(1) did not support the sentence imposed, violating his Fifth and Sixth Amendment rights. Second, he contends that his 1998 South Carolina convictions for second-degree burglary did not qualify as “violent felonies” under ACCA because the statutory elements of those convictions, as well as the relevant 2 state court records, did not limit those convictions to generic burglary, which structure, see (1990), but is breaking Taylor rather v. allowed and entering United the States, into a 495 U.S. possibility that building he or 575, 599 had been convicted of breaking and entering into a vehicle, watercraft, or aircraft. Because a conviction for breaking and entering into a vehicle, watercraft, or aircraft would not be considered generic burglary, it would not qualify as a predicate offense under ACCA. We conclude that McLeod’s first argument lacks merit, as it is foreclosed by the Supreme Court’s decision in AlmendarezTorres v. United States, 523 U.S. 224 (1998). But we conclude that his second argument does have merit, as the evidence that the government offered with respect to at least four of his five burglary convictions did not show that they qualified as “violent felonies” under ACCA because the government was unable to demonstrate that the object of each conviction was necessarily a building or structure, as distinct from a vehicle, boat, or airplane. Accordingly, we affirm his conviction but vacate his sentence and remand for resentencing. I In May 2014, McLeod pleaded guilty to unlawfully possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). 3 Because the presentence report showed that McLeod had five previous convictions for second-degree burglary, in violation of South Carolina Code § 16-11-312, the district court concluded at sentencing that those convictions were for “violent felonies” and that McLeod therefore qualified as an armed career criminal, requiring the court to impose a sentence of at least 15 years’ imprisonment. those with 18 U.S.C. § 924(e). convictions, willfully nighttime -- the and namely, underlying unlawfully the With respect to four of indictments entering Cottingham ABC a charged “building” Store, the McLeod in the Rippetoe Canvas Company, the Dillon Company, and Walmart, respectively -with the intent to commit a crime. indictments charged McLeod with The parties agree that those second-degree burglary of a building, in violation of South Carolina Code § 16-11-312(B). During the sentencing hearing, McLeod’s attorney stated to the court: Judge, we don’t have any objections to the guideline calculations like in the [presentence] report, but there are a couple things that Mr. McLeod wanted me to raise. He wanted me to object to say that the Government should have -- should have been required to name his predicate offenses in the indictment, and he wanted me to object to say that South Carolina burglary second offenses shouldn’t count as violent felonies [under ACCA]. And I’ve explained to him that that is not the law right now as to both of those issues. But he wanted me to make those with the understanding that Your 4 Honor would overrule those today, but he wanted me to pursue those on appeal to see if any court would revisit these issues and maybe make a change in the law. As anticipated, the district court overruled McLeod’s objections, applied the ACCA enhancement, and sentenced him to 188 months’ imprisonment. On appeal, McLeod argues the two issues he preserved: (1) that the district court should not have been able to enhance his sentence under ACCA because the government did not include his predicate convictions in the indictment and (2) that his 1998 South Carolina qualify as convictions “violent for felonies” second-degree for ACCA burglary do not sentence-enhancement purposes. II McLeod included contends the prior first that convictions the that government were the should basis for have his sentencing enhancement in the indictment and proved them to a jury and that the government’s failure to do so violated his Fifth and argument Sixth is Amendment foreclosed by rights. the He Supreme recognizes Court’s that decision his in Almendarez-Torres, but he argues that that case was “incorrectly decided.” He also recognizes that we are bound by Almendarez- Torres, raising the argument only to preserve it for further review by the Supreme Court. 5 Because Almendarez-Torres is still controlling law, we erred in affirm the district court’s rejection of this argument. III McLeod also contends that the district court relying on his 1998 South Carolina convictions for second-degree burglary to enhance his sentence under ACCA, maintaining that the convictions do not qualify as predicate convictions under ACCA. was He argues that the elements of the offense for which he convicted in South Carolina are broader than generic burglary because the statute prohibits not only the breaking and entering of a building or structure but also of other “edifices and things.” As he points out more specifically, the statute of conviction also prohibits breaking and entering into vehicles, boats, or planes. He argues accordingly that the convictions cannot serve as predicate burglary convictions, which must be limited to breaking and entering into a building or structure. See Taylor, 495 U.S. at 599. The government contends that McLeod’s previous South Carolina convictions qualify as predicate offenses under ACCA because the relevant indictments show that his convictions were for “burglary of a building,” which matches the generic definition of burglary announced by the Supreme Court in Taylor. Applying the modified categorical approach to analyze McLeod’s 6 predicate offenses, as authorized by Taylor and Descamps v. United States, 133 S. Ct. 2276, 2283-85 (2013), the government argues that “[e]ach of the state indictments demonstrates that the State charged McLeod under the building section of the second-degree burglary statute [§ 16-11-312(B)], conspicuously noting the particular building burglarized and that the burglaries occurred during the nighttime.” As applicable to the issues in this case, ACCA provides that any person convicted under 18 U.S.C. § 922(g) who “has three previous convictions . . . for a violent felony . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. to § 924(e)(1). And a “violent felony” is defined include the crime of burglary when punishable by imprisonment for a term exceeding one year. The Supreme Court has Id. § 924(e)(2)(B)(ii). concluded that, when Congress included burglary as a predicate offense in ACCA, it intended to refer to a generic definition of burglary. 589, 599. Taylor, 495 U.S. at The Court rejected arguments that sentencing courts could use any state definition of burglary, noting the problems that would result from wide variations in the definition. at 590-91. Id. It explained that Congress intended to use “uniform, categorical definitions to capture all offenses of a certain level of seriousness that involve violence or an inherent risk thereof.” Id. at 590 (emphasis added). 7 Addressing burglary in particular, “unlawful the or Taylor Court unprivileged defined entry generic into, or burglary remaining building or structure, with intent to commit a crime.” as an in, a Id. at 599. Because Congress intended for courts to use a categorical approach when determining whether a prior conviction was for generic burglary, id. at 588-89, the Taylor Court instructed that, in following that approach, a sentencing court may rely only on the statutory elements of the burglary conviction and the fact of conviction and may not rely on the particular facts underlying the conviction, see id. at 600-02; see also Descamps, 133 S. Ct. at 2283. When, however, a statute defines burglary with alternative elements such that one alternative corresponds to generic burglary and another does not, a sentencing court may apply the “modified categorical approach,” which allows it to examine certain court records or documents to determine whether the defendant alternative was form convicted of predicate offense. of generic burglary that would burglary not qualify or as an a See Descamps, 133 S. Ct. at 2281; Nijhawan v. Holder, 557 U.S. 29, 35 (2009); Shepard v. United States, 544 U.S. 13, 16 (2005). Those documents are generally limited to the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial 8 judge to which the defendant assented.” Shepard, 544 U.S. at 16. In Nijhawan, similar to the the Court South addressed Carolina a statute burglary in this statute, case, that criminalized “Breaking and Entering at Night” in any one of four locations: 35. a “building, ship, vessel or vehicle.” 557 U.S. at It “recognized that when a statute so ‘refer[s] to several different crimes,’ not all of which qualify as an ACCA predicate, a court must determine which crime formed the basis of the defendant’s conviction.” Descamps, 133 S. Ct. at 2284 (quoting Nijhawan, 557 U.S. at 35). Similarly, in Johnson v. United States, the Court reaffirmed that, “[w]hen the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, . . . the ‘modified categorical determine which approach’ statutory . phrase . . was permits the a court basis for to the conviction by consulting the trial record -- including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.” (quoting Nijhawan, omitted)). the 557 U.S. at 41 559 U.S. 133, 144 (2010) (internal quotation marks As the Descamps Court explained, “the job . . . of modified alternatives, approach the crime [is] of to identify, conviction 9 so from among that the several court can compare it to the generic offense.” 133 S. Ct. at 2285 (emphasis added). In this case, McLeod was charged with second-degree burglary of a building under South Carolina Code § 16-11-312(B), which provides in relevant part: (B) A person is guilty of burglary in the second degree if the person enters a building without consent and with intent to commit a crime therein, and . . . : (3) (Emphasis The entering nighttime. added). The 312(B) exceeds one year. or remaining sentence for a occurs violation in the of § 16-11- S.C. Code Ann. § 16-11-312(C). ∗ While this statutory language appears at first glance to parrot the language of generic burglary, as defined in Taylor, the statute defines the term “building” to include “any structure, vehicle, watercraft, or aircraft,” id. § 16-11-310(1), providing elements alternative to generic burglary. In this circumstance, the district court was allowed to employ the modified categorical approach, which allowed it to consider the charging document to identify the crime of conviction. See Descamps, 133 S. Ct. at 2284; Nijhawan, 557 U.S. at 35; Taylor, 495 U.S. at 602. ∗ South Carolina Code § 16-11-312(C) was amended in 2010, but the version of the statute in effect at the time of McLeod’s offenses authorized a term of imprisonment exceeding one year for second-degree burglary. 10 In this case, the government claims that because the charging document excluded vehicles, watercraft, or aircraft and noted that McLeod was charged only with entering a building, specifically naming the building in each case, the district court did not err in considering McLeod’s second-degree burglary convictions as predicate offenses under ACCA. The problem with the government’s position, however, arises from evidence revealed by the parties’ second supplemental joint appendix, which briefing in filed this case joint supplemental sentencing they with appendix for had been the four charged that McLeod court long completed. contained showing considering, the did That McLeod’s burglaries not after plea that plead the second to and we are guilty, as charged, to second-degree burglary of a building under § 16-11312(B), which is a crime characterized by South Carolina law as “violent.” guilty to See S.C. Code Ann. § 16-1-60. “nonviolent” second-degree Instead, he pleaded burglary. Although the plea and sentencing record do not cite the specific statutory subsection that McLeod pleaded guilty to violating, only § 1611-312(A) (second-degree burglary of a “dwelling”), not § 16-11312(B) (second-degree characterized degree as burglary burglary “nonviolent” law. See of under id. a South “building”), Carolina’s § 16-1-70. is second- Apparently by agreement, McLeod was allowed to plead guilty to the different 11 crime of nonviolent burglary, which could benefit him in the future with respect to certain sentencings. See, e.g., S.C. Code Ann. § 16-3-20(C)(b)(1) (requiring judges in capital cases to instruct defendant as to has conviction the no mitigating significant involving the use circumstance history of of violence that “[t]he prior criminal against another person”); State v. Rogers, 527 S.E.2d 101, 103-04 (S.C. 2000). Because McLeod pleaded guilty to second-degree burglary of a dwelling under § 16-11-312(A) and not the crime charged in the indictment under § 16-11-312(B), the indictment becomes irrelevant for determining the crime of conviction. The statute under which McLeod pleaded guilty, § 16-11312(A), provides: A person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein. (Emphasis added). Again, the sentence for a violation of § 16- 11-312(A) exceeds one year. See S.C. Code Ann. § 16-11-312(C). The word “dwelling” is defined to include “the living quarters of a building which is used or living, or lodging by a person.” added). vehicle, normally used for sleeping, Id. § 16-11-310(2) (emphasis And “building” is defined to include “any structure, watercraft, Consequently, with his or aircraft.” plea agreement, Id. § McLeod 16-11-310(1). was convicted under South Carolina law of burglarizing a “dwelling” that could 12 have been “any structure, vehicle, watercraft, or aircraft,” so long as a person “used or normally used” the location for “sleeping, living, or lodging.” While the modified categorical approach again would allow the district court § 16-11-312(A) government to determine involved presented whether generic McLeod’s nongeneric “charging no or document, plea under burglary, written the plea agreement, transcript of plea colloquy, or any explicit factual finding by the trial court to which the defendant assented” to show that the crime of Shepard, 544 U.S. at 16. that McLeod burglary, pleaded which, conviction generic burglary. The relevant documents indicate only guilty under was to South “nonviolent” Carolina law, second-degree can only burglary of a “dwelling,” as prohibited by § 16-11-312(A). the plea did not incorporate any facts, and the mean But buildings described in the indictments relate to the different offense under § 16-11-312(B). Because we cannot determine whether McLeod pleaded guilty to generic burglary with respect to four of his 1998 burglary convictions, they cannot serve as predicate offenses under ACCA. Although purported the government violations of § devoted its 16-11-312(B), brief as to charged McLeod’s in the indictments, it notes in a footnote to its brief that, even if McLeod’s prior convictions were 13 under § 16-11-312(A), they nonetheless would be for generic burglary, because we so concluded in United States v. Wright, 594 F.3d 259, 266 (4th Cir. 2010). In Wright, we observed, without more, that the language of § 16-11-312(A) “tracks the generic definition of burglary set forth by the Supreme Court in Taylor” and therefore concluded that “South Carolina’s burglary statute [§ 16-11- 312(A)] falls within the ACCA’s list of prior offenses.” Id. The holding in Wright, however, did not focus on that issue, as it was not briefed and argued to the court. Rather, the issue in Wright was whether the defendant was carrying a firearm when he concededly stole firearms from homes. only question is whether as a See id. at 265 (“[T]he definitional matter Wright ‘carried’ firearms when he admittedly stole them from homes on three separate occasions”). “carry” firearms such that In his concluding convictions that could Wright be used did to enhance his sentence under ACCA, we began the analysis by simply observing what was not challenged -- i.e., that the language of § 16-11-312(A) tracked the language of generic burglary. 266. Id. at That passing comment, however, never discussed whether § 16-11-312(A) was broader than generic burglary in light of the definition of “dwelling” given by the statute; the defendant conceded the fact that “homes” were involved. In these circumstances, we conclude that the government can draw little comfort from our passing observation that the statutory language 14 tracked the definition of burglary as given in Taylor. See United States v. Hemingway, 734 F.3d 323, 335 (4th Cir. 2013) (applying a similar analysis of Wright). For the reasons given, we affirm McLeod’s conviction but vacate his sentence and remand for resentencing. IT IS SO ORDERED. 15
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