PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4096
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DESMOND RA’KEESH WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:13-cr-00224-1)
Argued: March 24, 2016 Decided: September 9, 2016
Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed in part, vacated in part, and remanded by published
opinion. Judge Wynn wrote the opinion, in which Judge Agee and
Judge Schroeder joined.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Jennifer
Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston,
West Virginia, for Appellee. ON BRIEF: Christian M. Capece,
Federal Public Defender, Lex A. Coleman, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. R. Booth Goodwin II,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
2
WYNN, Circuit Judge:
Defendant Desmond Ra’Keesh White pled guilty to possession
of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).
The district court sentenced Defendant under the Armed Career
Criminal Act (“ACCA”), imposing the mandatory minimum sentence
of 180 months’ imprisonment. 18 U.S.C. § 924(e).
On appeal, Defendant challenges the district court’s denial
of his motion to suppress firearm evidence, an issue preserved
for appeal by conditional plea. Defendant also challenges the
enhancement of his sentence under the ACCA. Defendant argues
that, in light of Johnson v. United States, 135 S. Ct. 2551
(2015), a case decided during the pendency of this appeal, the
district court erred in finding that his prior West Virginia
burglary convictions constitute qualifying predicate crimes for
purposes of the ACCA.
For the reasons that follow, we affirm the district court’s
denial of the suppression motion but find that, because of an
intervening change in law following sentencing, the district
court erroneously sentenced Defendant under the ACCA. We
therefore affirm Defendant’s conviction, vacate Defendant’s
sentence, and remand for resentencing.
I.
On July 9, 2013, Corporal Justin Doughty (“Corporal
Doughty”) of the Charleston Police Department was on patrol in a
3
marked police cruiser in Charleston, West Virginia when he
observed a car veer out of its lane. 1 Corporal Doughty initiated
a traffic stop to ascertain whether the driver was impaired.
Erica Teunis was driving the car. Defendant was in the front
passenger seat, and another male, referred to only as “Bone,”
was seated in the rear.
When he approached the driver’s window, Corporal Doughty
smelled an odor of burned marijuana emanating from the car.
After obtaining Ms. Teunis’s driver’s license, Corporal Doughty
asked Ms. Teunis to exit the car in order to speak with her
outside the presence of the two passengers. Based on his
observation of and conversation with Ms. Teunis, Corporal
Doughty concluded that she was not intoxicated or otherwise
impaired. While assessing whether Ms. Teunis was impaired,
Corporal Doughty also inquired about the odor of marijuana. Ms.
Teunis responded that she did not smoke marijuana but did not
know about the other two passengers in the car.
After speaking with Ms. Teunis, Corporal Doughty requested
that Defendant exit the car and then asked Defendant about the
marijuana odor. Defendant denied having anything illegal in the
1 Because Defendant appeals the denial of a motion to
suppress, we recount the factual background in the light most
favorable to the government, the prevailing party below. See
United States v. Uzenski, 434 F.3d 690, 704 (4th Cir. 2006).
4
vehicle. Corporal Doughty then placed Defendant in his police
cruiser, otherwise unrestrained, and returned to the car to
speak with Bone. While speaking with Bone, Corporal Doughty
observed a firearm tucked in a piece of plastic molding on the
side of the passenger seat where Defendant had been sitting. At
that time, Corporal Doughty returned to his cruiser, placed
Defendant in handcuffs, and radioed for backup.
When backup officers arrived, Corporal Doughty returned to
the car and removed the firearm. After being read his Miranda
rights, Defendant admitted to Corporal Doughty that the firearm
belonged to him.
During the stop, Corporal Doughty also called for an
officer to conduct a canine sniff to investigate the marijuana
odor. The canine alerted at the passenger door and the car’s
center console, but it is unclear from the record if the search
revealed a detectable amount of marijuana.
Defendant was indicted in the United States District Court
for the Southern District of West Virginia for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Defendant moved to suppress the firearm evidence obtained from
the traffic stop. Following a hearing, the district court
denied the motion. The district court found that reasonable
suspicion supported the initial stop based upon Corporal
Doughty’s observation of Ms. Teunis’s car veering out of its
5
lane. United States v. White, No. 2:13-CR-00224, 2014 WL
4629385, at *4 (S.D.W. Va. Sept. 15, 2014). The court also
concluded that the odor of marijuana provided Corporal Doughty
with reasonable suspicion to extend the traffic stop and,
ultimately, probable cause to search the passenger compartment
of the car, where the firearm was recovered. Id. at *6.
Defendant subsequently entered into a conditional plea
agreement with the government, in which he agreed to plead
guilty to being a felon in possession of a firearm. Pursuant to
the plea agreement, Defendant preserved his right to appeal the
denial of the suppression motion. Defendant entered his guilty
plea on October 1, 2014.
In the presentence report, the probation officer classified
Defendant as an armed career criminal under the ACCA, based on a
prior West Virginia state robbery conviction and three prior
West Virginia state burglary convictions. At sentencing,
Defendant did not object to the ACCA designation. Finding
Defendant subject to the ACCA sentence enhancement, the district
court sentenced Defendant to the mandatory minimum term of
fifteen years’ imprisonment. See 18 U.S.C. § 924(e)(1). Absent
the enhancement, Defendant would have faced a maximum sentence
of ten years. 18 U.S.C. § 924(a)(2).
6
II.
A.
We first consider Defendant’s argument that the district
court erred in refusing to suppress the firearm evidence
obtained during the traffic stop. In particular, Defendant
claims that the evidence was obtained only after Corporal
Doughty unconstitutionally prolonged the stop. Regarding this
challenge, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Perkins, 363 F.3d 317, 320 (4th Cir. 2004).
When a police officer stops a car and detains its
occupants, the traffic stop amounts to a “seizure” within the
meaning of the Fourth Amendment. Brendlin v. California, 551
U.S. 249, 255 (2007); Whren v. United States, 517 U.S. 806, 809–
10 (1996). Therefore, to pass constitutional muster, the stop
must “not be ‘unreasonable’ under the circumstances.” Whren, 517
U.S. at 810.
We employ the two-prong standard articulated in Terry v.
Ohio, 392 U.S. 1 (1968), to assess the constitutionality of a
traffic stop. United States v. Vaughan, 700 F.3d 705, 709 (4th
Cir. 2012). First, we examine whether the officer had a
constitutionally adequate basis for initiating the traffic stop.
United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992).
Second, we examine whether the officer’s subsequent actions were
7
“‘sufficiently limited in scope and duration.’” United States v.
Guijon-Ortiz, 660 F.3d 757, 764 (4th Cir. 2011) (quoting Florida
v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion)).
As to the first prong, reasonable suspicion or probable
cause to believe that a traffic violation has occurred provides
law enforcement officers with a constitutionally adequate basis
to initiate a traffic stop. Whren, 517 U.S. at 810; United
States v. Kellam, 568 F.3d 125, 136 (4th Cir. 2009) (“[I]f an
officer has probable cause or a reasonable suspicion to stop a
vehicle, there is no intrusion upon the Fourth Amendment.”
(quoting United States v. Hassan El, 5 F.3d 726, 730 (4th Cir.
1993))).
Under the second prong, the scope of the traffic stop must
not exceed the “least intrusive means reasonably available to
verify or dispel the officer’s suspicion in a short period of
time.” Guijon-Ortiz, 660 F.3d at 764 (quoting Royer, 460 U.S. at
500). Further, the duration of the stop must be reasonable in
light of its purpose. See id.; see also Illinois v. Caballes,
543 U.S. 405, 407 (2005) (noting that a traffic stop may “become
unlawful if it is prolonged beyond the time reasonably required
to complete [its] mission”). In the context of a stop for a
traffic violation, the officer may “request[] a driver’s license
and vehicle registration, run[] a computer check, and issu[e] a
ticket.” Guijon-Ortiz, 660 F.3d at 764-65 (quoting United States
8
v. Digiovanni, 650 F.3d 498, 507 (4th Cir. 2011)). The officer
must limit the duration of the stop to the length of time
reasonably necessary to “issue the driver a citation and
determine that the driver is entitled to operate his vehicle.”
United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008).
“[W]hen [the] tasks tied to the traffic infraction are—or
reasonably should have been—completed,” however, the officer’s
“[a]uthority for the seizure . . . ends.” Rodriguez v. United
States, 135 S. Ct. 1609, 1614 (2015).
To prolong the stop beyond the scope of the traffic
violation, the officer must obtain the driver’s consent or
possess reasonable suspicion of criminal activity. United States
v. Williams, 808 F.3d 238, 245–46 (4th Cir. 2015); Vaughan, 700
F.3d at 710. “In order to demonstrate reasonable suspicion, a
police officer must offer ‘specific and articulable facts’ that
demonstrate at least ‘a minimal level of objective
justification’ for the belief that criminal activity is afoot.”
Branch, 537 F.3d at 337 (quoting Illinois v. Wardlow, 528 U.S.
119, 123 (2000)).
Defendant does not challenge the initial basis for the
traffic stop; it is undisputed that Corporal Doughty observed
Ms. Teunis’s vehicle veer out of its lane prior to the stop. See
W. Va. Code § 17C-7-9(a)(1) (“A vehicle shall be driven as
nearly as practicable entirely within a single lane and shall
9
not be moved from such lane until the driver has first
ascertained that such movement can be made with safety.”).
Rather, Defendant challenges the stop’s duration. Specifically,
Defendant argues that once Corporal Doughty determined that Ms.
Teunis was not intoxicated or otherwise impaired, the stop
should have ended. Defendant’s argument is without merit.
This Court has “repeatedly held that the odor of marijuana
alone can provide probable cause to believe that marijuana is
present in a particular place.” United States v. Humphries, 372
F.3d 653, 658 (4th Cir. 2004). Therefore, “when marijuana is
believed to be present in an automobile based on the odor
emanating therefrom, we have found probable cause to search the
automobile.” Id.; see also, e.g., United States v. Lewis, 606
F.3d 193, 198 (4th Cir. 2010) (finding probable cause justifying
a vehicle search when an officer “smelled the odor of marijuana
emanating from the vehicle”); United States v. Carter, 300 F.3d
415, 422 (4th Cir. 2002) (holding that an officer “clearly had
probable cause to search the passenger compartment of [the]
vehicle without a warrant, based on the burning marijuana he
smelled as he approached the car”).
Corporal Doughty smelled the odor of burned marijuana when
he first approached the car—before he had an opportunity to
investigate the potential traffic infraction that initially
justified the stop. At that point, Corporal Doughty had
10
reasonable suspicion to extend the traffic stop for a period of
time sufficient to investigate the marijuana odor. Humphries,
372 F.3d at 658; see also Wardlow, 528 U.S. at 123
(“[R]easonable suspicion is a less demanding standard than
probable cause.” (internal quotation marks omitted)).
Accordingly, the district court did not err in holding that the
odor of burned marijuana provided Officer Doughty with
reasonable suspicion to extend the stop.
Defendant also challenges the district court’s decision to
credit Corporal Doughty’s testimony that he smelled burned
marijuana. We accord a district court’s findings based on
assessments of witness credibility the “highest degree of
appellate deference.” United States v. Thompson, 554 F.3d 450,
452 (4th Cir. 2009) (quotation omitted). Accordingly, we will
overturn a district court’s credibility finding only if the
witness’ testimony is “so internally inconsistent or implausible
on its face that a reasonable factfinder would not credit it” or
if the testimony is contradicted by objective evidence. Anderson
v. City of Bessemer City, 470 U.S. 564, 575 (1985). At the
suppression hearing, Corporal Doughty testified unequivocally
that he smelled burned marijuana. Further, his subsequent
actions—inquiring with the car’s occupants concerning marijuana
and requesting a canine sniff—corroborate his statement. The
11
district court properly exercised its discretion in crediting
Corporal Doughty’s testimony.
Accordingly, the district court did not err when it denied
Defendant’s motion to suppress. We therefore affirm Defendant’s
conviction.
B.
We next consider Defendant’s challenge to his sentence
under the ACCA. The ACCA prescribes a fifteen-year mandatory
minimum sentence when a defendant is convicted of being a felon
in possession of a firearm and has three or more prior
convictions that qualify as “violent felon[ies].” 18 U.S.C.
§ 924(e)(1). The ACCA defines “violent felony” to mean a felony
that
(i) has as an element the use, attempted use, or
threatened use of physical force against the
person of another; or
(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).
The final clause of the above definition—which references
conduct “present[ing] a serious potential risk of physical
injury to another”—has become known as the ACCA’s “residual
clause.” Johnson, 135 S. Ct. at 2556. In Johnson, a case
decided during the pendency of this appeal, the Supreme Court
12
held that the residual clause is unconstitutionally vague and
therefore violates due process. Id. at 2557. However, the
Court’s holding “d[id] not call into question . . . the
remainder of the [ACCA’s] definition of a violent felony.” Id.
at 2563.
Shortly after Johnson, Defendant filed supplemental
briefing challenging his sentence. Defendant argues that,
although his burglary convictions under W. Va. Code § 61-3-11(a) 2
met the definition of a “violent felony” under the residual
clause at the time of his sentencing, they can no longer qualify
as such in light of that clause’s invalidation in Johnson. The
government counters that Defendant has abandoned this sentencing
claim because he did not raise the issue in his opening brief.
The government also contends that, regardless of the
constitutionality of the residual clause, the West Virginia
burglary convictions qualify as ACCA predicate crimes because
burglary is an offense specifically enumerated in the ACCA’s
“violent felony” definition. See 18 U.S.C. § 924(e)(2)(B)(ii).
2Although the presentence investigation report does not
specify the subsection of West Virginia’s burglary statute under
which Defendant was convicted, the sentence Defendant received
corresponds to W. Va. Code § 61-3-11(a). Likewise, the parties’
briefing indicates Defendant was convicted under that
subsection.
13
1.
As a preliminary matter, we address the government’s
argument that Defendant has abandoned the opportunity to appeal
his sentence because Defendant raised the issue for the first
time in supplemental briefing, rather than in his opening brief.
Typically, we consider “contentions not raised in the argument
section of the opening brief [to be] abandoned.” United States
v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004); see also Fed
R. App. P. 28(a)(8)(A); Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999). However, this Court may, in its
discretion, deviate from this rule in appropriate circumstances.
See A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 369
(4th Cir. 2008) (explaining that the Court may exercise its
discretion to consider an abandoned argument if “a miscarriage
of justice would otherwise result” (internal quotation marks
omitted)).
Although we have not squarely addressed whether an
intervening case presents such a circumstance, our unpublished
decisions indicate that we have routinely allowed—and even
requested—supplemental briefing on new arguments or claims when
an intervening court decision upends precedent relevant to an
appeal. See, e.g., United States v. Billups, No. 14-4959, 2016
WL 3254700, at *1 n.1 (4th Cir. June 14, 2016) (considering a
challenge to an ACCA sentence that was first raised in
14
supplemental briefing after Johnson); United States v. Starkie,
615 F. App’x 132, 133 (4th Cir. 2015) (granting a petition for
panel rehearing and directing the parties to submit supplemental
briefing “addressing whether, in light of Johnson, the district
court committed reversible error by classifying [the defendant]
as an armed career criminal under the ACCA”); United States v.
Musleh, 106 F. App’x 850, 857 n.4 (4th Cir. 2004) (noting the
Court’s sua sponte order for supplemental briefing after Blakely
v. Washington, 542 U.S. 296 (2004)). Our sister circuits do the
same. See, e.g., United States v. Durham, 795 F.3d 1329, 1330–
31 (11th Cir. 2015); Joseph v. United States, 135 S. Ct. 705,
706 (2014) (Kagan, J., respecting the denial of cert.)
(collecting cases).
Additionally, common sense dictates that an appellant can
only “abandon” an argument that was actually available to him.
See Joseph, 135 S. Ct. at 706 (“When a new claim is based on an
intervening Supreme Court decision . . . the failure to raise
the claim in an opening brief reflects not a lack of diligence,
but merely a want of clairvoyance.”). We therefore hold that
when an intervening decision of this Court or the Supreme Court
affects precedent relevant to a case pending on direct appeal,
an appellant may timely raise a new argument, case theory, or
claim based on that decision while his appeal is pending without
triggering the abandonment rule.
15
That is exactly what happened in this case. At the time
Defendant filed his opening brief—regardless of whether his West
Virginia burglary convictions constitute “burglary” for purposes
of Section 924(e)(2)(B)(ii)—it would have been futile for him to
argue that those convictions did not qualify as ACCA violent
felonies because they fell under the residual clause. In United
States v. Davis, 689 F.3d 349 (4th Cir. 2012), we held that the
similar West Virginia crime of attempted breaking and entering
qualified as such under the residual clause because the crime
posed the possibility of a “face-to-face confrontation between
the burglar and a third party.” Id. at 358 (quotation omitted).
This rationale would have applied equally to burglary under W.
Va. Code § 61-3-11(a). Moreover, at the time of Defendant’s
opening brief, it was settled law that the residual clause was
not unconstitutionally vague. James v. United States, 550 U.S.
192, 210 n.6 (2007); see also Sykes v. United States, 564 U.S.
1, 15–16 (2011). When the Supreme Court decided Johnson, it
expressly overruled this precedent. 135 S. Ct. at 2563.
Shortly thereafter, Defendant sought this Court’s leave to file
supplemental briefing and challenge his sentence under the ACCA.
We therefore conclude that Defendant has properly raised his
ACCA claim.
16
2.
Turning to the merits, the question before us is whether
Defendant’s West Virginia burglary convictions can still meet
the definition of an ACCA violent felony, despite the Supreme
Court’s invalidation of the residual clause. Specifically, we
consider whether Defendant’s convictions for burglary under
W. Va. Code § 61-3-11(a) qualify as “burglary” within the
meaning of the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii).
Because Defendant did not challenge his ACCA designation
before the district court, we review for plain error. Fed. R.
Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731–32
(1993). Under the plain error standard, Defendant must show
that (1) there was an error; (2) the error is plain; and (3) the
error affects substantial rights. Molina-Martinez v. United
States, 136 S. Ct. 1338, 1343 (2016); Olano, 507 U.S. at 732.
We may then exercise our discretion to correct the error if it
“‘seriously affects the fairness, integrity or public reputation
of judicial proceedings.’” Molina-Martinez, 136 S. Ct at 1343
(quoting Olano, 507 U.S. at 736).
To determine whether a prior conviction qualifies as an
ACCA enumerated offense, courts employ what is known as “the
categorical approach.” Descamps v. United States, 133 S. Ct.
2276, 2283 (2013). Under this approach, the court “focus[es]
solely on whether the elements of the crime of conviction
17
sufficiently match the elements of [the listed] generic [crime],
while ignoring the particular facts of the case.” Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016). An offense’s
federal generic definition may differ from the offense’s state-
law definition. Thus, in applying the categorical approach, a
state conviction will qualify as an enumerated offense, and thus
a predicate crime under the ACCA, only if the elements of the
state-law crime of conviction “are the same as, or narrower
than, those of the [ACCA-enumerated] generic offense,”
regardless of whether the defendant actually committed the
offense in its generic form. Id.; Descamps, 133 S. Ct. at 2283.
Regarding the elements of the generic offense at issue in
this case, the Supreme Court has defined generic burglary as the
“unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a crime.”
Taylor v. United States, 495 U.S. 575, 598 (1990). Defendant
contends that the West Virginia burglary statute sweeps more
broadly than generic burglary because it covers enclosures other
than “building[s] or . . . structure[s].” We agree.
Generic burglary’s “building or other structure” element
does not encompass every enclosure. For example, in Shepard v.
United States, 544 U.S. 13, 15–16 (2005), the Supreme Court
stated that the generic offense refers to burglary “committed in
a building or enclosed space . . . not in a boat or motor
18
vehicle.” Similarly, the Supreme Court recently found an Iowa
burglary statute to encompass conduct outside the bounds of
generic burglary because the statute specified that the crime
could occur in a “land, water, or air vehicle.” Mathis, 136 S.
Ct. at 2250 (quoting Iowa Code § 702.12 (2013)); see also
Taylor, 495 U.S. at 599 (describing a state burglary offense
that prohibited breaking and entering “any booth or tent, or any
boat or vessel, or railroad car” as nongeneric burglary (quoting
Mo. Rev. Stat. § 560.070 (1969) (repealed))).
The burglary statute relevant here, W. Va. Code § 61-3-
11(a), provides:
If any person shall, in the nighttime, break and enter, or
enter without breaking, or shall, in the daytime, break and
enter, the dwelling house, or an outhouse adjoining thereto
or occupied therewith, of another, with intent to commit a
crime therein, he shall be deemed guilty of burglary.
W. Va. Code § 61-3-11(a) (emphasis added). Section 61-3-11(c)
provides a non-exhaustive list of those enclosures that can
constitute a “dwelling house,” providing that
[t]he term “dwelling house,” . . . shall include, but
not be limited to, a mobile home, house trailer,
modular home, factory-built home or self-propelled
motor home, used as a dwelling regularly or only from
time to time, or any other nonmotive vehicle primarily
designed for human habitation and occupancy and used
as a dwelling regularly or only from time to time.
Id. § 61-3-11(c). Significantly, the statutory definition
includes “vehicle[s].” Id. Indeed, the statute identifies a
“self-propelled motor home,” a vehicle regulated by West
19
Virginia’s Motor Vehicle Administration statutes, as an example
of a “dwelling house.” Id.; see id. § 17A-1-1(ll) (defining a
“[m]otor home” as a “vehicle”). Thus, in criminalizing burglary
of a dwelling house, the West Virginia burglary statute
encompasses conduct that is excluded from the definition of
generic burglary.
The government nonetheless argues that the term dwelling
house “substantially corresponds” with generic burglary’s
building or structure element because the term refers to
enclosures used as residences. Appellee’s Supp. Br. at 8–9.
Our decision in United States v. Henriquez, 757 F.3d 144 (4th
Cir. 2014), forecloses this argument.
In Henriquez, we considered whether Maryland first degree
burglary, which requires the breaking and entering of a
“dwelling of another,” constitutes generic burglary under the
categorical approach. 757 F.3d at 148, 151. Although the
Maryland statute at issue “d[id] not define the term
‘dwelling,’” we found that Maryland state courts had construed
the term to mean “a place where a person resides and sleeps.”
Id. at 148–49. Taking note of the fact that a Maryland court
“ha[d] already deemed a recreational vehicle a dwelling” and
that the dwelling definition adopted by Maryland courts “easily
could cover” other enclosures that the “United States Supreme
Court has clearly excluded . . . from the definition of generic
20
burglary,” such as “houseboat[s],” we concluded that Maryland’s
first degree burglary statute encompassed conduct outside the
scope of generic burglary, and thus the statute did not qualify
as ACCA “burglary” under the categorical approach. Id. at 149–
50.
The rationale from Henriquez governs this case. Like the
Maryland definition of dwelling, the West Virginia burglary
statute’s reference to a dwelling house “easily could cover”
enclosures that are excluded from the generic definition of
burglary, such as vehicles. Id. at 149. Indeed, the statutory
definition of the term includes vehicles explicitly. W. Va. Code
§ 61-3-11(c). And, just as it was immaterial in Henriquez that
Maryland’s definition of “dwelling” would only capture an
enclosure “where a person resides or sleeps,” id., the fact that
the West Virginia definition of “dwelling house” refers to
enclosures used as residences or dwellings “regularly or . . .
from time to time,” W. Va. Code § 61-3-11(c), does not change
the result here. Because W. Va. Code § 61-3-11(a) criminalizes
burglary of a “dwelling house”—a term that reaches enclosures
excluded from generic burglary’s building or structure element—
Defendant’s prior burglary convictions do not qualify as the
ACCA enumerated offense of “burglary” under the categorical
approach.
21
Accordingly, we conclude that Defendant’s prior West
Virginia burglary convictions do not meet the ACCA definition of
a “violent felony,” and the district court thus erred in
enhancing Defendant’s sentence under the ACCA. 3
3 A modification of the categorical approach—aptly named the
“modified categorical approach”—may be used when the underlying
state crime is “divisible” such that it “consists of ‘multiple,
alternative elements’ creating ‘several different crimes,’ some
of which would match the generic federal offense and others that
would not.” Omargharib v. Holder, 775 F.3d 192, 197-98 (4th Cir.
2014) (quoting Descamps, 133 S. Ct. at 2284–85). Under the
modified categorical approach, a sentencing court looks to so-
called Shepard documents, such as the indictment, jury
instructions, or plea agreement, to ascertain which of the
alternative elements encompass the defendant’s crime of
conviction. Mathis, 136 S. Ct. at 2249 (citing Shepard, 544 U.S.
at 26). The court then compares the elements of the crime of
conviction with those of the generic offense. Descamps, 133 S.
Ct. at 2281.
During oral argument, the question was raised as to whether
W. Va. Code § 61-3-11(a) is divisible because it states
alternative locational elements. See W. Va. Code § 61-3-11(a)
(criminalizing entry into a “dwelling house, or an outhouse”
(emphasis added)). Neither party briefed this issue, and the
district court did not address it below. Moreover, there are no
Shepard documents in the record pertinent to Defendant’s West
Virginia burglary convictions. We therefore need not and do not
reach the question of divisibility to resolve this appeal. See
United States v. McLeod, 808 F.3d 972, 977 (4th Cir. 2015)
(holding that a conviction under a divisible statute could not
qualify as ACCA “burglary” pursuant to the modified categorical
approach when there were no Shepard documents “to show that the
crime of conviction was generic burglary”). Nor do we express
any view as to whether W. Va. Code § 61-3-11(a) satisfies the
other elements of generic burglary—such as the “unlawful or
unprivileged entry” element—under the categorical or modified
categorical approaches.
22
Having determined that there was an error, we address
whether the other requirements of the plain error standard are
met. The second requirement of the plain error standard is that
the error must be “plain,” i.e., “clear or obvious.” Molina-
Martinez, 136 S. Ct. at 1343. In this regard, “[a]n error is
plain ‘if the settled law of the Supreme Court or this circuit
establishes that an error has occurred.’” United States v.
Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (quoting United
States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002)).
Moreover, regardless of “whether a legal question was settled or
unsettled at the time of trial, ‘it is enough that an error be
“plain” at the time of appellate consideration.’” Henderson v.
United States, 133 S. Ct. 1121, 1130 (2013) (quoting Johnson v.
United States, 520 U.S. 461, 468 (1997)).
Controlling precedent establishes that the error at issue
in this appeal is plain. After Johnson, Defendant’s prior
convictions cannot qualify as ACCA violent felonies under the
residual clause. Further, in light of this circuit’s decision
in Henriquez, W. Va. Code § 61-3-11(a) “is not reasonably
susceptible to an interpretation” that it falls within the
generic definition of burglary under the categorical approach. 4
4
Prior decisions from this circuit finding West Virginia
state burglary convictions to qualify as ACCA burglary do not
undercut this conclusion. See United States v. Lewis, 75 F.
(Continued)
23
Maxwell, 285 F.3d at 342. We therefore conclude that the second
requirement of the plain error standard is satisfied.
To satisfy the third plain error requirement the error must
affect substantial rights. In the sentencing context, an error
affects substantial rights if there is “a reasonable probability
that,” but for the error, “the district court would have imposed
a different sentence.” Molina-Martinez, 136 S. Ct. at 1349.
Without the ACCA enhancement, the statutory maximum sentence for
Defendant’s felon in possession of a firearm conviction is ten
years. 18 U.S.C. § 924(a)(2). Thus, the sentencing error
affected Defendant’s substantial rights by compelling a five-
year increase in his term of incarceration. See United States v.
Boykin, 669 F.3d 467, 472 (4th Cir. 2012) (finding that an
erroneous ACCA designation affected the defendant’s substantial
rights); Maxwell, 285 F.3d at 342–43 (finding a sentence in
excess of the statutory maximum to affect defendant’s
substantial rights).
Finally, we may exercise our discretion to correct an error
that “‘seriously affects the fairness, integrity or public
App’x 164, 166 (4th Cir. 2003); United States v. Blankenship,
No. 92-5354, 1993 WL 40857, at *1 (4th Cir. Feb. 18, 1993).
These unpublished decisions not only predate Henriquez, but also
the Supreme Court’s decision in Descamps, which clarified the
proper application of the categorical and modified categorical
approaches. See 133 S. Ct. at 2283–86.
24
reputation of judicial proceedings.’” Molina-Martinez, 136 S.
Ct. at 1343 (quoting Olano, 507 U.S. at 736). Here, “[t]here
would clearly be a ‘miscarriage of justice’ were we to allow
. . . a severe sentence enhancement to be applied inconsistently
with the law.” Boykin, 669 F.3d at 472. We therefore exercise
our discretion to grant Defendant relief.
III.
For the foregoing reasons, we affirm Defendant’s
conviction, vacate Defendant’s sentence, and remand for
resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
25
United States v. Desmond White
Court: Court of Appeals for the Fourth Circuit
Date filed: 2016-09-09
Citations: 836 F.3d 437
Copy CitationsCombined Opinion