Mutee v. United States, No. 17-15415 (9th Cir. 2019)
Annotate this CaseA conviction under North Carolina's breaking-or-entering statute, N.C. Gen. Stat. 14-54, qualifies as a predicate felony under the Armed Career Criminal Act (ACCA). The Ninth Circuit affirmed petitioner's sentence imposed after defendant was convicted of being a felon in possession of a firearm. The panel held that United States v. Stitt, 139 S. Ct. 399 (2018), which addressed a relevant question about the scope of generic burglary, foreclosed petitioner's argument that North Carolina's definition of "building" must be overbroad merely because it has been interpreted to encompass mobile homes. Because petitioner failed to demonstrate a "realistic probability" that North Carolina would apply section 14-54 to conduct outside the scope of generic burglary, the panel held that his conviction under that statute qualified as a predicate felony under the ACCA.
Court Description: 28 U.S.C. § 2255 Affirming a sentence, the panel held that, in light of United States v. Stitt, 139 S. Ct. 399 (2018), a conviction under North Carolina’s breaking-or-entering statute, N.C. Gen. Stat. § 14-54, qualifies as a predicate felony under the Armed Career Criminal Act. The panel wrote that Stitt, which held that generic burglary includes burglary of mobile structures customarily used or adapted for overnight accommodation, forecloses the defendant’s argument that North Carolina’s definition of “building” must be overbroad merely because it has been interpreted to encompass mobile homes. The panel wrote that to the extent this court’s decision in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), supported the defendant’s position, that precedent has been abrogated by Stitt. The panel wrote that United States v. Terrell, 593 F.3d 1084 (9th Cir. 2010), which interpreted Grisel to hold that generic burglary requires burglary of an “unmovable structure,” is clearly irreconcilable with Stitt, and is therefore overruled. The panel rejected the defendant’s contention that North Carolina’s definition of “building” sweeps too broadly for generic burglary even after Stitt. The panel explained that while the structures in the North Carolina cases on which the defendant relies were “movable” in that they were capable
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