Case: 21-60535 Document: 00516566465 Page: 1 Date Filed: 12/05/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
December 5, 2022
No. 21-60535 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Albert Thompson,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:19-CR-93-1
Before Dennis, Elrod, and Ho, Circuit Judges.
Per Curiam:
Albert Thompson pleaded guilty to possessing a firearm after a felony
conviction and was sentenced under 18 U.S.C. § 924(e), the Armed Career
Criminal Act (ACCA), to a mandatory minimum of 180 months in prison. He
appeals, arguing that his prior Mississippi convictions for burglary do not
qualify as crimes of violence under the ACCA, and that the convictions,
which occurred when he was a minor, are invalid because the juvenile court
never properly transferred jurisdiction to the circuit court. The Government
disagrees. It also moved to dismiss based on a waiver of appeal in
Thompson’s plea agreement.
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No. 21-60535
Because we conclude that Thompson’s arguments are without merit,
we pretermit the waiver issue. We also decline to consider an argument
Thompson first raised in his reply brief. The judgment of the district court is
AFFIRMED and the Government’s motion to dismiss is DENIED.
I.
In July 2019, Thompson was charged by superseding indictment with
one count of possessing a firearm after a felony conviction in violation of 18
U.S.C. § 922(g)(1). Thompson pleaded guilty. Thompson’s plea agreement
contained a waiver of his right to appeal his conviction or sentence “on any
ground whatsoever.” Thompson’s presentence report (PSR) concluded that
he qualified for enhanced sentencing under the ACCA based on four prior
convictions for burglary of a dwelling, Miss. Code § 97-17-23, three of
which occurred when Thompson was sixteen years old. Thompson objected,
arguing that Mississippi’s crime of burglary of a dwelling is broader than the
generic definition of burglary in the ACCA. The district court overruled this
objection, adopted the findings in the PSR, and sentenced Thompson to the
ACCA’s mandatory minimum of 180 months imprisonment.
Thompson timely appealed. The Government filed a motion to
dismiss, or in the alternative for summary affirmance, on the basis of
Thompson’s appeal waiver. Noting that appeal waivers are unenforceable
against challenges to sentences that exceed the statutory maximum, see
United States v. Kim, 988 F.3d 803, 811 (5th Cir. 2021), a motions panel
denied the request for summary affirmance and carried the motion to dismiss
with the case.
II.
This court “reviews the application of a § 924(e) sentencing
enhancement de novo. The district court’s factual findings are reviewed for
clear error.” United States v. Constante, 544 F.3d 584, 585 (5th Cir. 2008)
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No. 21-60535
(citations omitted). We review whether an appeal waiver bars an appeal de
novo. Kim, 988 F.3d at 808.
Following the wisdom of our colleagues, “[w]e conclude that
resolution of the waiver issue would be more difficult than resolving whether
[Thompson’s] state convictions were [crimes of violence]” and so pretermit
the issue. United States v. Barlow, 17 F.4th 599, 602 (5th Cir. 2021). As to the
two arguments Thompson properly presents on appeal, we find neither
persuasive. Thompson argues that three of his prior burglary convictions are
invalid because the youth courts in which delinquency proceedings were
initiated never properly transferred jurisdiction to the circuit courts which
eventually convicted him. The record does not support this assertion. Rather,
it shows that jurisdiction was transferred from the youth to circuit court in
Rankin County in conformity with Mississippi law. We reject Thompson’s
challenge to his conviction on this basis.
Thompson also argues that Mississippi’s crime of burglary of a
dwelling is broader than the generic crime of burglary incorporated into the
ACCA, and therefore his convictions for the former cannot serve as
predicates for sentencing enhancements under the latter. The ACCA
enhances sentences for § 922(g) convictions for, among other situations,
persons previously convicted of violent felonies on three different occasions.
18 U.S.C. § 924(e)(1). The ACCA counts “burglary” as a crime of violence.
§ 924(e)(2)(B)(ii). To determine whether a state’s burglary statute qualifies
as a “burglary” under the ACCA, we compare the elements of the state
offense to the elements in the generic definition of burglary in the ACCA.
Mathis v. United States, 579 U.S. 500, 504 (2016). “[A] state crime cannot
qualify as an ACCA predicate if its elements are broader than those of a listed
generic offense.” Id. at 509.
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The Mississippi crime for which Thompson was previously
convicted, burglary of a dwelling, has three elements: (1) unlawful breaking
and entering; (2) of a dwelling house; (3) with intent to commit a crime
therein. Ward v. State, 285 So. 3d 136, 140 (Miss. 2019); Bowman v. State,
283 So. 3d 154, 161 (Miss. 2019). A “dwelling house” is defined as “[e]very
building joined to, immediately connected with, or being part of the dwelling
house.” Miss. Code § 97-17-31. The ACCA’s generic definition of
burglary also has three elements: “[1] unlawful or unprivileged entry into, or
remaining in, [2] a building or other structure, [3] with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). Thompson argues
that the second elements of the two definitions do not match up. Specifically,
he claims that Mississippi’s “dwelling house” is broader than the ACCA’s
“building or structure” because a dwelling house may include buildings like
garages, sheds, or storage buildings that are connected to buildings used for
human habitation. We fail to see how these would not be “buildings or
structures” under the ACCA. See United States v. Montgomery, 974 F.3d 587,
592–93 (5th Cir. 2020) (rejecting argument that Louisiana law criminalizing
burglary of structures “appurtenant to or connected with a residential
home” was broader than ACCA’s “buildings or structures”); see also United
States v. Silva, 944 F.3d 993, 996 (8th Cir. 2019) (“The elements of § 97-17-
23 describe the generic offense of burglary.”). We thus hold that
Mississippi’s crime of burglary of a dwelling is a crime of violence under the
ACCA.
Finally, Thompson argues that the three burglaries in Rankin County
were part of one episode and should only be counted as one “occasion” for
the purposes of the ACCA. Because Thompson raised this argument only in
his reply, we do not consider the issue. See United States v. Aguirre-Villa, 460
F.3d 681, 683 n.2 (5th Cir. 2006).
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* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED and the Government’s motion to dismiss is DENIED as
moot.
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