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Richardson v. United States

United States Court of Appeals, Sixth Circuit

May 15, 2018

Matthew Gary Richardson, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued: March 7, 2018

         Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. Nos. 3:14-cr-00025-1; 3:16-cv-00398-Thomas A. Varlan, Chief District Judge.


          Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.

          Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

          Before: COLE, Chief Judge; WHITE and BUSH, Circuit Judges.


          HELENE N. WHITE, Circuit Judge.

          Petitioner Matthew Richardson appeals the district court's denial of his 28 U.S.C. § 2255 motion to set aside his sentence, challenging his designation as an armed career criminal under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). We AFFIRM.

         I. BACKGROUND

         In 2012, after attempting to sell a sawed-off shotgun, Richardson pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Based on Richardson's three prior Georgia burglary convictions, [1] each of which qualified as a predicate "violent felony" under the ACCA, the district court determined that Richardson was an armed career criminal and sentenced him to 180 months' imprisonment. Richardson did not appeal his sentence, but now brings this § 2255 motion alleging that in light of Johnson v. United States, 135 S.Ct. 2551 (2015), his prior Georgia burglary convictions no longer qualify as predicate offenses under the ACCA. The district court denied the motion, [2] and this timely appeal followed.


         We review de novo whether Richardson's prior convictions qualify as predicate violent felonies under the ACCA. United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir. 2013) (citation omitted). The ACCA provides for a mandatory minimum sentence of 180 months when a felon found guilty of possessing a firearm was previously convicted of at least three prior "serious drug offense[s]" or "violent felon[ies]." 18 U.S.C. § 924(e)(1). As relevant here, the ACCA defines "violent felony" to include "burglary." Id. § 924(e)(2)(B)(ii).

         However, not every "burglary" conviction qualifies as a predicate offense under the ACCA. As the Supreme Court explained, only "generic burglary"-defined as "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime"-qualifies as a violent felony under the enumerated-crimes clause of the ACCA. Taylor v. United States, 495 U.S. 575, 598 (1990). Thus, we must determine whether Richardson's three prior Georgia burglary convictions qualify as generic burglaries. To do so, we employ the "categorical" approach. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016).

          Under the categorical approach, we must determine "whether the elements of the crime of conviction sufficiently match the elements of generic burglary." Id. The Supreme Court has repeatedly cautioned that a court may look only at the elements of the statute of conviction and not at the underlying facts of the offense. Taylor, 495 U.S. at 599-602. If the statute's elements are the same as or narrower than the elements of the generic offense, the statutory offense qualifies as a predicate offense because the commission of the offense necessarily constitutes commission of the generic offense. Id. at 599.

         This task "is straightforward when a statute sets out a single (or 'indivisible') set of elements to define a single crime." Mathis, 136 S.Ct. at 2248. However, faced with an alternatively phrased statute, courts must first determine whether the statute lists elements in the alternative and thus creates a separate crime associated with each alternative element, or whether the statute creates only a single crime and "spells out various factual ways, " or "means, " "of committing some component of the offense." Id. at 2249.

         As Mathis explained, "[e]lements 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 omitted). "At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty." Id. Means, on the other hand, "are mere real-world things-extraneous to the crime's legal requirements." Id. "They are circumstances or events having no legal effect or consequence . . . [and] need neither be found by a jury nor admitted by a defendant." Id. (quotation marks and alterations omitted). As we recently explained:

In determining whether statutory alternatives constitute elements or means, [Mathis] clarified that sentencing courts should look first to state law, including judicial interpretations of the criminal statute by state courts. Alternatively, the statute itself may provide the answer. A statute might explicitly identify which things must be charged (and so are elements) and which need not be (and so are means). Moreover, if statutory alternatives carry different punishments, then under Apprendi they must be elements. On the other hand, if a statutory list is drafted to offer "illustrative examples, " then it includes only a crime's means of commission.
State law can be expected to provide a clear answer to the elements-means dilemma in many cases, but, if it does not, a sentencing court may briefly look to the record of the prior conviction. Sentencing courts encountering this situation may take a "peek" at the record documents for the sole and limited purpose of determining whether the listed items are elements of the offense. Indictments, jury instructions, plea colloquies and plea agreements will often reflect the crime's elements and so can reveal whether a statutory list is of elements or means. If the charging documents reiterate all the terms of the law, then each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt. The same is true if those documents use a single umbrella term like "premises." On the other hand, the record could indicate that the statute contains a list of distinct elements by referencing one alternative term to the exclusion of all others. Only if the record indicates that the listed items are elements, not alternative means, may the sentencing courts examine the Shepard documents to determine whether the crime the defendant was convicted of constituted a generic burglary. The Court cautioned, however, 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.

United States v. Ritchey, 840 F.3d 310, 318 (6th Cir. 2016) (internal quotations, citations, quotation marks, and alterations omitted).

         If an alternatively phrased statute sets forth alternative elements of an offense, the statute is divisible and courts may proceed to apply the "modified categorical" approach to identify which crime of the alternative crimes set forth in the statute was the basis of the defendant's conviction. Mathis, 136 S.Ct. at 2248-49. The modified categorical approach permits us to look at a limited class of documents from the record of the prior conviction (Shepard documents) to determine which crime, with what elements, the defendant was convicted of, before comparing that crime's elements to the generic offense. Id.; see Shepard v. United States, 544 U.S. 13, 26 (2005) ("We hold that enquiry under the ACCA to determine whether a plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.").

          Here, it is undisputed that the Georgia burglary statute at issue[3] criminalizes more conduct than the generic definition of burglary set forth in Taylor because it includes vehicles, railcars, watercraft, and aircraft in its list of locations covered by the statute. Thus, our first task is to determine whether the listed locations are alternative elements or alternative means of fulfilling an element. If the Georgia statute includes alternative locational elements, the statute is divisible and we must apply the modified categorical approach. If the statute contemplates alternative means of fulfilling the locational element, the statute is indivisible and subject only to the categorical analysis.


         In United States v. Gundy, the Eleventh Circuit applied the principles and tools outlined in Mathis to the Georgia burglary statute at issue here and found the statute ...

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