United States v. Driscoll

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 14, 2018

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 16-8118

CHANCE WADE DRISCOLL,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of Wyoming
(D.C. Nos. 1:16-CV-00082-SWS and 2:04-CR-00137-WFD-1)
_________________________________

Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, and Grant R. Smith, Assistant Federal Public Defender, on the briefs), Office
of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing
for Appellant.

Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States
Attorney, with him on the brief), Office of the United States Attorney for the District of
Wyoming, Lander, Wyoming, appearing for Appellee.
_________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges.
_________________________________

BRISCOE, Circuit Judge.
_________________________________

This is a 28 U.S.C. § 2255 challenge, under Johnson v. United States, 135 S. Ct.

2551 (2015), to an Armed Career Criminal Act (ACCA) sentencing enhancement. In
2004, Chance Wade Driscoll (“Driscoll”) pleaded guilty to being a felon in possession of

a firearm. At Driscoll’s sentencing in January 2005, the sentencing court1 accepted the

Presentence Investigation Report’s (“PSR”) determination that Driscoll was an armed

career criminal based upon one previous drug conviction and two previous burglary

convictions. The sentencing court did not state whether the two burglary convictions

counted as violent felonies under the ACCA’s enumerated offenses clause or the residual

clause. Over ten years later, Driscoll filed this § 2255 motion, arguing it was possible the

sentencing court relied on the now-unconstitutional residual clause of the ACCA to

enhance his sentence. The district court denied his § 2255 motion as untimely.

Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291, 2255(d), we REVERSE and

REMAND with instructions to VACATE Driscoll’s sentence and resentence him.

I

On September 20, 2004, Driscoll pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and using or carrying a firearm during and

in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i). In

Driscoll’s PSR, the probation office determined Driscoll qualified as an armed career

criminal under 18 U.S.C. § 924(e)(2)(B) due to his prior convictions under:

(1) Nebraska’s burglary statute; (2) Wyoming’s burglary statute; and (3) Wyoming’s

marijuana possession statute. Driscoll did not object to the PSR. On January 3, 2005, the

sentencing court sentenced Driscoll to 120 months for the § 922(g)(1) conviction and 60

1
To avoid confusion, we refer to the court that sentenced Driscoll as the
“sentencing court” and the court that denied his § 2255 motion as the “district court.”
2
months for the § 924(c)(1)(A)(i) conviction, to be served consecutively. The sentencing

court observed that neither party objected to the guideline calculation contained in the

PSR.

At the time of Driscoll’s sentencing, a defendant qualified as an armed career

criminal under the ACCA if he or she had “three previous convictions by any court . . .

for a violent felony or a serious drug offense, or both, committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1) (2004). Congress provided the following

definition of “violent felony”:

(B) [T]he term “violent felony” means any 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—

(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) (2004). That is, a prior conviction could serve as a predicate violent

felony if it fit under (1) the elements clause (“has an element the use, attempted use, or

threatened use of physical force against the person of another”); (2) the enumerated

offenses clause (“is burglary, arson, or extortion, involves use of explosives”); or (3) the

residual clause (“or otherwise involves conduct that presents a serious potential risk of

physical injury to another”). See United States v. Hamilton, 889 F.3d 688, 691 (10th Cir.

2018).

3
 One of Driscoll’s three predicate offenses was a prior conviction for violating the

Nebraska burglary statute. At the time of Driscoll’s Nebraska burglary conviction in

1988, that statute stated:

(1) A person commits burglary if such person willfully, maliciously,
and forcibly breaks and enters any real estate or any improvements
erected thereon with intent to commit any felony or with intent to
steal property of any value.

(2) Burglary is a Class III felony.

Neb. Rev. Stat. § 28-507 (1977).

More than ten years after Driscoll’s sentencing, on June 26, 2015, the Supreme

Court issued Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Court

held that one definition of “violent felony” in the ACCA—“or otherwise involves

conduct that presents a serious potential risk of physical injury to another” (otherwise

known as the “residual clause”)—is unconstitutionally vague. Id. at 2563. On April 18,

2016, the Court issued Welch v. United States, 136 S. Ct. 1257 (2016), which made

Johnson retroactively applicable to cases on collateral review. Id. at 1268.

On April 20, 2016 (less than one year after Johnson), Driscoll filed his first § 2255

motion to vacate his sentence. He claimed the sentencing court enhanced his sentence

under the residual clause and that, pursuant to Johnson and Welch, he was entitled to

relief.

On October 10, 2016, the district court dismissed Driscoll’s § 2255 motion. The

district court held that, “[b]ecause Driscoll cannot show that his sentence was enhanced

under the residual clause, Johnson is inapplicable and his § 2255 motion is therefore

4
time-barred.” ROA, Vol. I, at 105. Following its order, the district court granted Driscoll

a certificate of appealability. On October 11, 2016, Driscoll timely appealed.

II

“On appeal from the denial of a § 2255 motion, ordinarily ‘we review the district

court’s findings of fact for clear error and its conclusions of law de novo.’” United States

v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quoting United States v. Rushin, 642

F.3d 1299, 1302 (10th Cir. 2011)).

A. Timeliness and Procedural Default

Less than a year after the district court dismissed Driscoll’s § 2255 motion, we

decided United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017), cert. denied, --- S. Ct. --

-, 2018 WL 1994823 (2018), a case factually similar to this one. Snyder also involved a

pre-Johnson sentencing enhancement under the ACCA, and the sentencing record was

unclear as to whether the Snyder sentencing court relied on the enumerated offenses

clause or the residual clause to enhance Snyder’s sentence. Id. at 1124–25. Within a

year following Johnson, Snyder filed a § 2255 motion, challenging his sentencing

enhancement as invalid under Johnson, and arguing the record did not establish whether

his sentence was enhanced under the residual clause or the enumerated offenses clause.

The government argued the defendant’s motion was both untimely and procedurally

barred. We rejected both arguments. Id. at 1126–28.

First, we discussed whether Snyder’s § 2255 motion was timely under § 2255(f),

which “allows a § 2255 motion to be filed within one year of ‘the date on which the right

5
asserted was initially recognized by the Supreme Court.’” Id. at 1126 (quoting

§ 2255(f)). We held:

Whether or not Snyder can ultimately prevail on his motion, he
asserts the right established in Johnson, to be free from a sentence
purportedly authorized by the unconstitutionally vague residual
clause. Thus, his § 2255 motion, filed within a year of the Court's
decision in Johnson, is timely under § 2255(f)(3).

Id. Applying Snyder, Driscoll’s § 2255 motion was timely because he asserted a Johnson

claim within a year of the Court’s Johnson decision. The district court’s holding that,

“[b]ecause Driscoll cannot show that his sentence was enhanced under the residual

clause, Johnson is inapplicable and his § 2255 motion is therefore time-barred,” ROA,

Vol. I at 105, was legally erroneous. For timeliness purposes, it does not matter

“[w]hether [Driscoll] can ultimately prevail on his motion.” Snyder, 871 F.3d at 1126. It

only matters that “he asserts the right established in Johnson.” Id.

Second, in Snyder we held

Snyder asserts, and we agree, that he has demonstrated cause and
prejudice sufficient to overcome the procedural default rule.
....
As the District of Columbia Circuit has noted, “it is fair to say that
no one—the government, the judge, or the [defendant]—could
reasonably have anticipated Johnson.” United States v. Redrick, 841
F.3d 478, 480 (D.C. Cir. 2016). . . . We therefore conclude that the
Johnson claim was not reasonably available to Snyder at the time of
his direct appeal, and that this is sufficient to establish cause.
....
Snyder was sentenced under 18 U.S.C. § 924(e)(1), which carries a
mandatory minimum sentence of fifteen years’ imprisonment. He
claims that this statute does not apply to him and that his ACCA
sentence enhancement is invalid after Johnson. If he is correct, he
should instead have been sentenced under 18 U.S.C. § 924(a)(2),
which carries a statutory maximum sentence of only ten years’
imprisonment. Thus, there is not just a possibility, but a certainty,

6
 that the alleged error influenced the outcome of Snyder’s sentencing,
because his sentence of 172 months and 10 days would exceed the
statutory maximum allowed for his crimes. A sentence that is not
authorized by law is certainly an “actual and substantial
disadvantage” of “constitutional dimensions.” See Frady, 456 U.S.
at 170. Thus, Snyder has shown actual prejudice arising from the
asserted error. Because he has shown both cause and prejudice, his
claim overcomes procedural default.

Id. at 1127–28. Driscoll adequately shows both cause and prejudice as well. If “the

Johnson claim was not reasonably available to Snyder at the time of his direct appeal,”

and that was “sufficient to establish cause,” then surely Driscoll has also established

cause, considering he was sentenced two months before Snyder. Moreover, if Driscoll is

correct, then he should instead have been sentenced under 18 U.S.C. § 924(a)(2), which

carried a statutory maximum sentence of only ten years’ imprisonment. Because a

“sentence that is not authorized by law is certainly an ‘actual and substantial

disadvantage’ of ‘constitutional dimensions,’” Snyder, 871 F.3d at 1128 (quoting United

States v. Frady, 456 U.S. 152, 170 (1982)), Driscoll has shown actual prejudice arising

from the asserted error. Thus, like Snyder, “[b]ecause he has shown both cause and

prejudice, [Driscoll’s] claim overcomes procedural default.” Id.

B. Merits

Having concluded that Driscoll’s § 2255 motion was both timely and not

procedurally defaulted, we proceed to the merits of the motion. To determine whether

Driscoll succeeds on the merits of his § 2255 motion, we apply harmless-error review.

See Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993) (applying harmless-error review

to § 2254 movants); United States v. Dago, 441 F.3d 1238, 1246 (10th Cir. 2006)

7
(holding “the logic behind Brecht also is applicable in § 2255 cases”). First, we

determine whether the sentencing court erred by relying on the residual clause to enhance

Driscoll’s sentence. Second, if the sentencing court erred, we determine whether that

error “had substantial and injurious effect or influence in determining” Driscoll’s

sentence. Brecht, 507 U.S. at 638.

1. Error

The district court in 2016 made a finding that the sentencing court in 2005 relied

on the enumerated offenses clause—not the residual clause—when enhancing Driscoll’s

sentence. We disagree.

Once again, this case presents a similar question to the one at issue in Snyder,

where the district court “found . . . that [the sentencing court] did not apply the ACCA’s

residual clause in sentencing Snyder under the ACCA.” Snyder, 871 F.3d at 1128. To

review the district court’s finding in Snyder, we (1) looked at the sentencing record to

confirm that “there is no mention whatsoever of the residual clause in the PSR or any of

the other [sentencing] court pleadings or transcripts,” and then (2) examined the “relevant

background legal environment” at the time of sentencing to determine whether the district

court would have needed to rely on the residual clause.2 Id. at 1130. When we review a

district court’s finding that a sentencing court did not apply the residual clause to enhance

2
We do not mean to suggest that both steps are required in every case. It is
certainly possible that the sentencing record reveals the sentencing court unambiguously
relied on a clause other than the residual clause to enhance a defendant’s sentence under
the ACCA. In such a circumstance, it might not be necessary to proceed to Snyder’s
second step, because the second step is only useful insofar as it helps to show the most
likely reasoning of the sentencing court, when on review, we are presented with an
ambiguous sentencing record.
8
a defendant’s sentence, we review the factual determinations about the sentencing record

for clear error and the legal conclusions about the relevant background legal environment

de novo.3

Applying Snyder’s first step here, the record of Driscoll’s 2005 sentencing does

not contain any mention of the residual clause. It similarly contains no mention of the

enumerated offenses clause. Thus, the district court did not err in its factual finding that

“[t]he record makes no reference to the residual clause.”4 ROA, Vol. I at 97. That

ambiguity, however, does not end our analysis.

Moving to Snyder’s second step, we turn to the relevant background legal

environment at the time of Driscoll’s sentencing. Because Snyder discussed the “relevant

background legal environment” for a 2005 sentencing enhancement based upon prior

burglary convictions, the following passage from Snyder is instructive:

In this case, Snyder’s sentencing proceeding occurred against the
backdrop of the Supreme Court’s decision in Taylor [v. United

3
As a general matter, when reviewing the district court’s denial of a § 2255
motion, “we review the district court’s findings of fact for clear error and its conclusions
of law de novo.” Barrett, 797 F.3d at 1213 (quotation omitted). As we held in Snyder, a
district court’s “determination that a defendant qualifies for an ACCA enhancement is a
finding.” 871 F.3d at 1128–29. But that finding rests on the sentencing record, which is
“a matter of historical fact,” as well as “the relevant background legal environment at the
time of sentencing,” which is a “legal conclusion[].” Id. (quotations omitted).
4
In 2016, the district court observed that “the PSR listed two burglary convictions
which directly correspond with the enumerated offense of burglary.” ROA, Vol. I at 97.
But the sentencing record does not reference the enumerated offenses clause. To the
extent that the district court assumed the sentencing court relied on the enumerated
offenses clause simply because the prior convictions were burglary convictions, that is far
from a safe assumption. At the time of sentencing, it had long been established that
burglary convictions do not inherently fall within the ACCA’s enumerated offense of
burglary. See Taylor v. United States, 495 U.S. 575, 599 (1990).
9
 States, 495 U.S. 575 (1990)]. In Taylor, the Supreme Court
construed the ACCA’s enumerated offenses clause and held

that a person has been convicted of a burglary for
purposes of a § 924(e) enhancement if he is convicted
of any crime, regardless of its exact definition or label,
having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure,
with intent to commit a crime.

495 U.S. at 599. The Court also held that “[t]his categorical
approach . . . may permit [a] sentencing court to go beyond the mere
fact of conviction in a narrow range of cases where a jury was
actually required to find all the elements of generic burglary.” Id. at
602. “For example,” the Court stated,

in a State whose burglary statutes include entry of an
automobile as well as a building, if the indictment or
information and jury instructions show that the
defendant was charged only with a burglary of a
building, and that the jury necessarily had to find an
entry of a building to convict, then the Government
should be allowed to use the conviction for
enhancement.

Id.

In light of Taylor, there would have been little dispute at the time of
Snyder’s sentencing that his two Wyoming burglary convictions
involving occupied structures fell within the scope of the ACCA’s
enumerated crimes clause. To be sure, the Wyoming statute under
which these convictions arose includes entry of “occupied
structure[s] or vehicle[s].” Wyo. Stat. § 6-3-301(a). But it would
have been permissible for the district court to examine the
underlying charging documents and/or jury instructions to determine
if Snyder was charged only with burglary of buildings. And the PSR
in Snyder’s case actually did just that, without any objection from
Snyder.

Snyder, 871 F.3d at 1129–30 (some parallel citations omitted).

10
 In 1988, Driscoll was found guilty of violating Nebraska’s burglary statute, Neb.

Rev. Stat. § 28-507. ROA, Vol. I at 29–31; id., Vol. III at 48. In relevant part,

Nebraska’s burglary statute states that “[a] person commits burglary if such person

willfully, maliciously, and forcibly breaks and enters any real estate or any improvements

erected thereon with intent to commit any felony or with intent to steal property of any

value.” Neb. Rev. Stat. § 28-507 (1977).

Because “any real estate or any improvements erected thereon” is broader than

“building or structure,” the sentencing court could have looked to the underlying record

of conviction. See, e.g., United States v. Green, 55 F.3d 1513, 1516 (10th Cir. 1995)

(considering the “charging document” because the “defendant [was] convicted under a

state statute defining burglary broader than Taylor”). The information underlying

Driscoll’s 1988 Nebraska burglary conviction states:

[T]he above-named defendant, on or about September 6, 1988, then
in Lincoln County, Nebraska, did willfully, maliciously, and forcibly
break and enter real estate or improvements erected thereon, to wit:
Stockman Land Corp, 1218 N. Ash, North Platte, with intent to
commit any felony or with intent to steal property of value.

ROA, Vol. I at 29. The PSR informed the sentencing court that Driscoll burglarized the

above property. Id., Vol. III at 48 (“The defendant forcibly entered the Stockman Land

Corporation in North Platte, Nebraska, with the intent to steal property.”).

Unlike in Snyder, the information underlying Driscoll’s 1988 Nebraska burglary

conviction does not confirm that Driscoll burglarized a “building or structure” within the

generic definition of burglary. The information gives an address, but it is unclear

whether Driscoll burglarized a building at that address, or simply a fenced-in property at

11
that address. Because Nebraska’s burglary statute criminalizes breaking and entering

“any real estate,” a conviction under the statute is not limited to breaking and entering a

building or structure—it could involve opening a gate and stealing a bicycle on private

property. See, e.g., State v. Greer, 596 N.W.2d 296, 303 (Neb. 1999) (“Presumably,

opening a gate is a breaking (not yet decided), but crawling over a fence is not.” (citation

omitted)); State v. Classen, 275 N.W.2d 91, 92 (Neb. 1979) (discussing a burglary where

“a chain, which was on a gate of a fence protecting the grain bin, was cut and that a

number of tools were missing”). Stated differently, if Driscoll cut a fence at Stockman

Land Corporation and stole an item off of the corporation’s land, then he would be guilty

under Nebraska’s burglary statute but not under the generic definition of burglary. Even

after reading the information underlying Driscoll’s Nebraska burglary conviction, the

sentencing court could not have known whether he actually burglarized a building at

Stockman Land Corporation, or simply took something that was on the corporation’s

land but not inside any building.

Snyder affirmed “the district court’s finding that its ACCA determination rested

on application of the enumerated crimes clause, rather than the residual clause,” primarily

because, “given the relevant background legal environment that existed at the time of

Snyder’s sentencing, there would have been no need for reliance on the residual clause.”

Snyder, 871 F.3d at 1130. Given the relevant background legal environment that existed

at the time of Driscoll’s sentencing, however, the sentencing court did not face the same

type of facts as in Snyder. The sentencing court in this case could not have relied on the

12
enumerated offenses clause because that would have violated Taylor. To impose the

ACCA enhancement, its only option was the residual clause.

The government maintains that Driscoll has failed to carry his burden to show the

sentencing court actually relied on the residual clause. In Snyder, we did not address a

defendant’s burden of proof at the merits stage of a § 2255 challenge. The Eleventh

Circuit, however, has held: “To prove a Johnson claim, the movant must show that—

more likely than not—it was use of the residual clause that led to the sentencing court’s

enhancement of his sentence.” Beeman v. United States, 871 F.3d 1215, 1221–22 (11th

Cir. 2017). In United States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018), we

adopted Beeman’s articulation of a § 2255 movant’s burden in a slightly different

context.5 We now further adopt Beeman’s “more likely than not” burden of proof here, at

the merits stage of a first § 2255 challenge. Consequently, Driscoll must prove that the

5
Beeman involved a defendant pursuing his first § 2255 motion. In contrast,
Washington involved a defendant pursuing his second § 2255 motion. 890 F.3d at 893.
In the context of a second or successive § 2255 motion, there are procedural hurdles not
present when filing a first § 2255 motion. Notably, a defendant must pass through two
“gates.” At the first gate, a defendant must make a prima facie showing that his motion
relies on a new rule of constitutional law. See id. at 894–95; see also 28 U.S.C.
§ 2255(h). At the second gate, “a defendant must back up the prima facie showing with
actual evidence to show he can meet this standard.” Washington, 890 F.3d at 895
(quotations and ellipsis omitted). In Washington, we adopted Beeman’s “more likely
than not” burden of proof in the context of a second § 2255 movant who reaches this
second gate—i.e., we held a second § 2255 movant must show with actual evidence that
the sentencing court, more likely than not, relied on the residual clause. Id. at 896. The
present case and Beeman, however, involve a defendant pursuing his first § 2255 motion,
where the court reaches the merits of the defendant’s motion. Although Washington did
not involve a defendant filing his first § 2255 motion, we find Washington persuasive and
likewise adopt the Beeman test in addressing this first § 2255 motion.
13
sentencing court, more likely than not, relied on the residual clause to enhance his

sentence under the ACCA.

Driscoll meets this burden. The sentencing record is ambiguous as to whether the

sentencing court relied on the residual clause to enhance Driscoll’s sentence, which

favors neither Driscoll nor the government. But, after a review of the relevant

background legal environment, we conclude that the sentencing court must have relied on

the residual clause, as any reliance on the enumerated offenses clause would have

violated Taylor. Thus, Driscoll has adequately shown it is more likely than not that the

sentencing court relied on the residual clause to enhance his sentence.

2. Harmlessness

Although Driscoll has sufficiently shown that the sentencing court erred, we will

grant him relief only if that error “had substantial and injurious effect or influence in

determining” his sentence. Brecht, 507 U.S. at 638. As applied here, we must affirm if,

even with the Johnson error, Driscoll has three predicate convictions to support his

enhanced sentence as an armed career criminal under the ACCA.

Although the PSR identified a lengthy criminal history involving numerous prior

convictions, the government limits its argument on appeal to three prior convictions that

could have served as predicate offenses to qualify Driscoll as an armed career criminal:

(1) a 1988 Nebraska conviction for burglary; (2) a 1992 Wyoming conviction for aiding

and abetting the delivery of marijuana; and (3) a 1993 Wyoming conviction for burglary.6

6
The PSR also identified a 1988 Nebraska criminal mischief conviction for
slashing a vehicle’s tires; a 1999 Utah case involving convictions for possession of
14
The sentencing court’s error sufficiently prejudiced Driscoll if any of these three prior

convictions do not constitute a predicate offense.

We turn first—and as it happens, last—to the 1988 Nebraska burglary conviction.

As discussed above, Nebraska’s burglary statute states that “[a] person commits burglary

if such person willfully, maliciously, and forcibly breaks and enters any real estate or any

improvements erected thereon with intent to commit any felony or with intent to steal

property of any value.” Neb. Rev. Stat. § 28-507 (1977). The government does not

argue that § 28-507 is divisible. Instead, the government argues that all of § 28-507 fits

within the generic definition of burglary. Specifically, the government argues “real

estate” categorically fits under “building or structure” and thus a § 28-507 conviction

qualifies as a generic burglary. Stated differently, the government argues that “[t]he

phrase ‘real estate’ as used in the statute should not be read as including unimproved

land.” Aple. Br. at 45. This required the government to make the following argument:

Here, the phrase “real estate” is being used in a criminal statute
prohibiting forcible “breaking and entering.” In this context, the
term “real estate” must mean something different in the burglary
context than the everyday context, which might include unimproved
land—the concept of “forcibly breaking and entering” unimproved
land is plainly an awkward one.

Id. at 45–46.

marijuana, possession of drug paraphernalia, and driving under the influence of
marijuana; a 2002 Wyoming shoplifting conviction; and a 2004 Wyoming battery
conviction. ROA, Vol. III at 48–50. Because the government did not argue that we
could affirm Driscoll’s enhanced sentence by relying on any of these prior convictions as
alternative predicate offenses, we decline to consider them in our analysis.
15
 We disagree. First, if “real estate” means “building or structure,” it would mean

the subsequent phrase “or any improvements erected thereon” refers only to

improvements erected on an existing building or structure. That is nonsensical. Instead,

a plain reading of “any improvements erected thereon” refers to any building or structure

erected on real estate (i.e., land). This reading of “any real estate or any improvements

erected thereon” is supported by State v. Vaughn, 402 N.W.2d 300 (Neb. 1987). In

Vaughn, the Nebraska Supreme Court discussed a burglary of “a residence by the

removal of a combination window screen and the raising of a kitchen window in the rear

of the house,” id. at 301, and categorized the burglary as “forcible entry of an

improvement on real estate,” id. at 302. That is, the Nebraska Supreme Court considered

a burglary of a house to be a burglary of an improvement on real estate, not a burglary of

real estate itself.

Second, as stated previously, the concept of “breaking and entering” a fence

around an enclosed piece of land is not difficult to conceive. The statute, as written,

plainly criminalizes cutting a fence and stealing property like crops or livestock found

therein.

Because Neb. Rev. Stat. § 28-507 includes land, it does not categorically fit under

the generic offense of burglary, which is limited to buildings or structures.7 As a result,

Driscoll’s 1988 Nebraska burglary conviction was not a violent felony as defined by the

enumerated offenses clause of the ACCA. This means Driscoll does not qualify as an

7
Because we conclude that a conviction under § 28-507 does not qualify as a
violent felony under the ACCA’s enumerated offenses clause, we need not reach whether
Driscoll’s other two predicate offenses qualify under the ACCA.
16
armed career criminal under the ACCA. Consequently, he is not eligible for 18 U.S.C.

§ 924(e)’s fifteen-year minimum, and instead is subject to § 924(a)(2)’s ten-year

maximum. The sentencing court’s error was not harmless.

III

We REVERSE and REMAND with instructions to vacate Driscoll’s sentence and

to resentence him.

17