[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-13680 JULY 14, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:10-cr-80037-DMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
KANE CHRISTOPHER WHEELER, JR.,
lllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 14, 2011)
Before BARKETT, WILSON and ARNOLD,* Circuit Judges.
PER CURIAM:
*
Honorable Morris S. Arnold, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
Kane Christopher Wheeler appeals his sentence of 180 months’
imprisonment, imposed after he pled guilty to one count of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Wheeler was
sentenced as an armed career criminal under the Armed Career Criminal Act
(“ACCA”), his prior three convictions for third degree burglary under Florida
Statutes § 810.02, serving as the predicate offenses. Wheeler argues that third
degree burglary under Florida law is different from generic burglary and does not
pose a risk of serious injury to another person, thereby not qualifying as a “violent
felony” for purposes of sentencing under the ACCA.
This Court considers de novo whether a particular conviction is a violent
felony for purposes of the ACCA. United States v. Wilkerson, 286 F.3d 1324,
1325 (11th Cir. 2002). Under the ACCA, a person who violates 18 U.S.C. §
922(g) and who has three previous convictions for a violent felony, a serious drug
offense, or both, is an armed career criminal and subject to imprisonment for a
period of not less than 15 years. 18 U.S.C. § 924(e)(1). The ACCA defines a
violent felony as:
[A]ny crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that . . .
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(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]
Id. § 924(e)(2)(B) (emphasis added). Thus, a defendant may be sentenced as an
armed career criminal if his prior offense is either for one of the enumerated
offenses or it “involves conduct that presents a serious potential risk of physical
injury to another” person.
In Taylor v. United States, the Supreme Court adopted the generic meaning
of “burglary” for purposes of the ACCA, holding that an offense qualifies as an
enumerated offense in the statute so long as it includes, at a minimum, the
elements of “an unlawful or unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” 495 U.S. 575, 599 (1990). The Court
explained that Congress did not intend to limit generic burglary to especially
dangerous burglaries, but also included “run-of-the-mill burglaries involving an
unarmed offender, an unoccupied building, and no use or threat of force.” Id. at
597. The Court directed courts to use a categorical approach to determine if a
predicate offense is equivalent to generic burglary. Id. at 602.
It is by now well-understood that under the categorical approach, courts
may look only to the fact of conviction and the statutory definition of the predicate
offense. Id. However, in those cases where it is unclear from the statutory
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definition whether a conviction would include generic or non-generic burglary, for
example in those states where burglary could include entry into an automobile, a
trial court may also look to the indictment, information or jury instructions to
determine if the defendant was convicted of generic burglary. Id.; see also
Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that the trial court may
examine the charging document, plea agreement, plea colloquy, or “some
comparable judicial record of this information”).
Florida defines burglary as “entering a dwelling, a structure, or a
conveyance with the intent to commit an offense therein.” Fla. Stat. §
810.02(1)(b). A burglary is a felony of the third degree if, “in the course of
committing the offense, the offender does not make an assault or battery and is not
and does not become armed with a dangerous weapon or explosive,” and the
structure or conveyance is unoccupied. Fla. Stat. § 810.02(4).
On its face, Florida’s third degree burglary statute is non-generic in at least
two regards. First, in addition to covering buildings and structures, it also
includes “conveyance” which is defined as a “motor vehicle, ship, vessel, railroad
vehicle or car, trailer, aircraft, or sleeping car.” See Fla. Stat. § 810.011(3).
Second, Florida defines “structure,” as it is used in the burglary statute, to include
the curtilage of the structure, which the Florida Supreme Court has construed
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narrowly to include some form of an enclosure around the structure. See State v.
Hamilton, 660 So. 2d 1038, 1044 (Fla. 1995); see also James v. United States, 550
U.S. 192, 212-13 (2007) (citing to Hamilton’s definition of curtilage and noting
that Florida’s definition of curtilage takes the offense of burglary outside of
Taylor’s definition of generic burglary).
Here, Wheeler was convicted of burglary of a structure in each of the three
predicate offenses. Because Florida’s third degree burglary statute is non-generic,
we apply a modified categorical approach, looking past the statute to the
Information and Judgment of Conviction to determine if Wheeler’s convictions
still qualify as burglary for purposes of the ACCA. See United States v. Rainer,
616 F.3d 1212, 1215 (11th Cir. 2010) (explaining that when applying a modified
categorical approach a “conviction under a non-generic burglary statute still
counts as ‘burglary’ under the ACCA if the defendant was actually found guilty of
the elements of a generic burglary”). As was the situation in United States v.
Matthews, 466 F.3d 1271, 1274-75 (11th Cir. 2006), we cannot surmise from this
record whether Wheeler’s convictions were for burglary of the roofed portion of
the structures. Thus, we cannot state that he was convicted of the elements of
generic burglary and must determine whether his convictions under Florida’s third
degree burglary statute satisfy the ACCA’s residual clause of constituting a crime
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that “otherwise involves conduct that presents a serious potential risk of physical
injury to another[.]” § 924(e)(2)(B)(ii).
We previously considered this precise question in Matthews, concluding
that even when the burglary takes place in the curtilage and not under the roofed
part of the structure, it “is indeed a crime that presents a serious potential risk of
physical injury to another.” Id. at 1275 (internal quotation marks omitted). We
noted that the burglar could come into contact with the property’s owners or
occupants and that his presence alone could be considered threatening and lead to
violence. Id. Accordingly, the Matthew’s Court concluded that Florida’s offense
of third degree burglary qualified as a violent felony under the residual clause of
the ACCA. Id.
Since the time of our decision in Matthews, the Supreme Court has rendered
several other decisions, including James, 550 U.S. at 209; Begay v. United States,
553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009), that
further address the ACCA’s residual clause. Based on this Supreme Court
precedent, our circuit now applies a three-step test to determine if an offense
involves conduct that presents a serious potential risk of physical injury to
another. See United States v. Harris, 608 F.3d 1222, 1227 (11th Cir. 2010). We
first take a categorical approach, reading the statute itself to determine how the
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crime is ordinarily committed. Id. Based on this understanding of the offense, we
ask (1) “whether the crime poses a ‘serious potential risk of physical injury’ that is
similar in degree to the risks posed by the enumerated crimes”; (2) then “examine
. . . whether that crime was similar in kind and in degree to the enumerated
crimes”; and (3) finally ask “whether the conduct at issue in the statute is
‘purposeful, violent and aggressive.’” Id. And most recently, the Supreme Court
clarified in Sykes v. United States, ___ U.S. ___, ___;131 S. Ct. 2267, 2275
(2011), that it is the “levels of risk [that] divide crimes that qualify from those that
do not,” noting that “[t]he phrase ‘purposeful, violent, and aggressive’ [as used in
Begay] has no precise textual link to the residual clause, which requires that an
ACCA predicate ‘otherwise involve conduct that presents a serious potential risk
of physical injury to another.’”
Because we cannot state that any of the Supreme Court’s recent decisions
abrogate our holding in Matthews that a conviction under Florida’s third degree
burglary statute qualifies as a violent felony under the ACCA’s residual clause, we
cannot state that the district court erred in sentencing Wheeler as armed career
criminal based on his three convictions for third degree burglary in Florida.
AFFIRMED.
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