United States v. Desmond White

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.

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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.

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 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.

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 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

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