United States v. Gregory McLeod , 808 F.3d 972 ( 2015 )

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 Gregory McLeod pleaded guilty to possession of a
firearm by a convicted felon, in violation of 18 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
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state court records, did not limit those convictions to generic
burglary, which is breaking and entering into a building or
structure, see Taylor v. United States, 495 U.S. 575, 599
(1990), but rather allowed the possibility that he 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 Almendarez-
Torres 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). Because the
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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. 18 U.S.C. § 924(e). With respect to four of
those convictions, the underlying indictments charged McLeod
with willfully and unlawfully entering a “building” in the
nighttime -- namely, the Cottingham ABC Store, the Rippetoe
Canvas Company, the Dillon Company, and Walmart, respectively --
with the intent to commit a crime. The parties agree that those
indictments charged McLeod with 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
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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 convictions for second-degree burglary do not
qualify as “violent felonies” for ACCA sentence-enhancement
purposes.
II
McLeod contends first that the government should have
included the prior convictions that were the basis for 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 Sixth Amendment rights. He recognizes that his
argument is foreclosed by the Supreme Court’s decision 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.
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Because Almendarez-Torres is still controlling law, we
affirm the district court’s rejection of this argument.
III
McLeod also contends that the district court erred in
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. He argues that the elements of the offense for which he
was 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
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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. § 924(e)(1). And a “violent felony” is defined to
include the crime of burglary when punishable by imprisonment
for a term exceeding one year. Id. § 924(e)(2)(B)(ii).
The Supreme Court has concluded that, when Congress
included burglary as a predicate offense in ACCA, it intended to
refer to a generic definition of burglary. Taylor, 495 U.S. at
589, 599. 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. Id.
at 590-91. 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). Addressing burglary in
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particular, the Taylor Court defined generic burglary as an
“unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” 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 was convicted of generic burglary or an
alternative form of burglary that would not qualify as a
predicate offense. 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, the Court addressed a burglary statute,
similar to the South Carolina statute in this case, that
criminalized “Breaking and Entering at Night” in any one of four
locations: a “building, ship, vessel or vehicle.” 557 U.S. at
35. 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 approach’ . . . permits a court to
determine which statutory phrase was the basis for 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.” 559 U.S. 133, 144 (2010)
(quoting Nijhawan, 557 U.S. at 41 (internal quotation marks
omitted)). As the Descamps Court explained, “the job . . . of
the modified approach [is] to identify, from among several
alternatives, the crime of conviction so that the court can
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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) The entering or remaining occurs in the
nighttime.
(Emphasis added). The sentence for a violation of § 16-11-
312(B) exceeds one year. 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.
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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 they filed with the court long after the
briefing in this case had been completed. That second
supplemental joint appendix contained McLeod’s plea to and
sentencing for the four charged burglaries that we are
considering, showing that McLeod did not plead guilty, as
charged, to second-degree burglary of a building under § 16-11-
312(B), which is a crime characterized by South Carolina law as
“violent.” See S.C. Code Ann. § 16-1-60. Instead, he pleaded
guilty to “nonviolent” second-degree burglary. Although the
plea and sentencing record do not cite the specific statutory
subsection that McLeod pleaded guilty to violating, only § 16-
11-312(A) (second-degree burglary of a “dwelling”), not § 16-11-
312(B) (second-degree burglary of a “building”), is
characterized as “nonviolent” under South Carolina’s second-
degree burglary law. See id. § 16-1-70. Apparently by
agreement, McLeod was allowed to plead guilty to the different
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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 as to the mitigating circumstance that “[t]he
defendant has no significant history of prior criminal
conviction involving the use of violence 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, § 16-11-
312(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 normally used for sleeping,
living, or lodging by a person.” Id. § 16-11-310(2) (emphasis
added). And “building” is defined to include “any structure,
vehicle, watercraft, or aircraft.” Id. § 16-11-310(1).
Consequently, with his plea agreement, McLeod was convicted
under South Carolina law of burglarizing a “dwelling” that could
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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 to determine whether McLeod’s plea under
§ 16-11-312(A) involved generic or nongeneric burglary, the
government presented no “charging document, written 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 conviction was generic burglary.
Shepard, 544 U.S. at 16. The relevant documents indicate only
that McLeod pleaded guilty to “nonviolent” second-degree
burglary, which, under South Carolina law, can only mean
burglary of a “dwelling,” as prohibited by § 16-11-312(A). But
the plea did not incorporate any facts, and the 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 the government devoted its brief to McLeod’s
purported violations of § 16-11-312(B), as charged in the
indictments, it notes in a footnote to its brief that, even if
McLeod’s prior convictions were under § 16-11-312(A), they
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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. See id. at 265 (“[T]he
only question is whether as a definitional matter Wright
‘carried’ firearms when he admittedly stole them from homes on
three separate occasions”). In concluding that Wright did
“carry” firearms such that his convictions could be used 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. Id. at
266. 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.
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