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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-12113
________________________
D.C. Docket No. 3:13-cr-00004-DHB-BKE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NATHAN E. GUNDY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(November 23, 2016)
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Before HULL and JILL PRYOR, Circuit Judges, and CONWAY, * District Judge.
HULL, Circuit Judge:
Defendant Nathan E. Gundy appeals his conviction and 288-month sentence
for being a convicted felon in possession of firearms. The district court determined
that Gundy was an armed career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), because he had at least three prior Georgia
burglary convictions, each of which qualified as a predicate “violent felony” under
the enumerated crimes provision of the ACCA. On appeal, Gundy challenges his
designation as an armed career criminal under § 924(e).
After review of the record and with the benefit of oral argument, we affirm
Gundy’s conviction and sentence.
I. BACKGROUND
In December 2013, a jury found Gundy guilty on one count of being a
convicted felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e).
The Presentence Investigation Report (“PSI”) recommended a base offense
level of 24, pursuant to U.S.S.G. § 2K2.1. The PSI recommended (1) a 2-level
increase under U.S.S.G. § 2K2.1(b)(1)(A) because the offense involved three
*
Honorable Anne C. Conway, United States District Judge, for the Middle District of
Florida, sitting by designation.
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firearms, 1 (2) a 2-level increase under U.S.S.G. § 2K2.1(b)(4)(A) because the
firearms Gundy possessed were stolen, and (3) a 4-level increase under U.S.S.G.
§ 2K2.1(b)(6)(B) because Gundy possessed the firearms in connection with
another felony offense. These increases yielded an adjusted offense level of 32.
Gundy had numerous prior felony convictions, 17 criminal history points,
and a criminal history category of VI, even without a § 924(e) enhancement.
Gundy’s offense level of 32 and criminal history category of VI would have
yielded an advisory guidelines range of 210 to 262 months. Without a § 924(e)
enhancement, Gundy’s statutory maximum penalty would have been 120 months’
imprisonment. See 18 U.S.C. § 924(a)(2).
The PSI, however, reported that Gundy was an armed career criminal under
§ 924(e) because he was previously convicted of seven burglary offenses in
Georgia, namely: (1) a 2001 conviction for one count of burglary, (2) another 2001
conviction for four counts of burglary, each of which occurred on a separate
occasion, (3) a 2005 conviction for one count of burglary, and (4) a 2006
conviction for one count of burglary. Gundy had pled guilty to each of those
Georgia burglary offenses. The PSI provided that Gundy had other Georgia
convictions for forgery, possession of cocaine, possession of marijuana, entering
an automobile, and theft by taking.
1
The three firearms were: (1) an FIE, Model E22, .22 caliber pistol, (2) a Smith and
Wesson, Model 36, .38 caliber revolver, and (3) a Jimenez, Model J.A. Nine, 9mm caliber pistol.
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Due to his status as an armed career criminal under § 924(e), Gundy’s
offense level increased from 32 to 34 under U.S.S.G. § 4B1.4(b)(3)(A). With a
total offense level of 34 and a criminal history category of VI, Gundy’s advisory
guidelines range was 262 to 327 months’ imprisonment.
Gundy’s status as an armed career criminal under § 924(e) raised his
statutory range of imprisonment to 15 years to life, rather than zero to 10 years.
As to the PSI, Gundy objected to the 2-level increase for possessing stolen
firearms and the 4-level increase for possessing firearms in connection with
another felony. He also objected to his designation as an armed career criminal on
the ground that only two of his burglary convictions involved the burglary of a
residence. According to Gundy, only “burglary of a residence” qualifies as a
“violent felony” under the ACCA, and, therefore, he did not have the requisite
three violent felony convictions to qualify as an armed career criminal.
At the April 2014 sentencing hearing, the district court overruled Gundy’s
objection to the 2-level increase for possessing stolen firearms, but sustained
Gundy’s objection to the 4-level increase for possessing the firearms in connection
with another felony.
The district court also overruled Gundy’s objection to his designation as an
armed career criminal. The district court expressly deferred to the reasoning of the
probation officer set forth in an addendum to the PSI. In that addendum, the
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probation officer concluded that Gundy was an armed career criminal because the
charging documents in each of Gundy’s burglary convictions “reveal[ed] that each
of those offenses [met] the elements of generic burglary (i.e., [Gundy] unlawfully
entered a building or structure with the intent to commit a theft”).
Because the district court sustained Gundy’s objection to the 4-level
increase, Gundy’s total offense level became 33 under U.S.S.G. § 4B1.4(b). With
a total offense level of 33 and a criminal history category of VI, Gundy’s advisory
guidelines range was 235 to 293 months’ imprisonment. After considering the
advisory guidelines range and the factors set forth in 18 U.S.C. § 3553(a), the
district court sentenced Gundy to 288 months’ imprisonment. Gundy appealed his
conviction and sentence.
Gundy makes several arguments challenging the validity of his § 922(g)
conviction. After our review of the record, we find that all of Gundy’s arguments
are without merit and affirm Gundy’s conviction. The only remaining issue is a
sentencing one—whether the district court erred in concluding that Gundy’s prior
Georgia burglary convictions qualified as violent felonies under the ACCA.
Whether a particular conviction is a violent felony for purposes of the ACCA is a
question of law we consider de novo. United States v. Canty, 570 F.3d 1251, 1254
(11th Cir. 2009).
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II. THE ACCA
A felon in possession of a firearm who has at least three prior convictions
“for a violent felony or a serious drug offense, or both, committed on occasions
different from one another,” is subject to an enhanced statutory penalty under the
ACCA. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as
any crime punishable by a term of imprisonment exceeding one year 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 first prong of this definition is sometimes referred to as the
“elements clause,” while the second prong contains the “enumerated crimes” and,
finally, what is commonly called the “residual clause.” 2 United States v. Owens,
672 F.3d 966, 968 (11th Cir. 2012).
This case involves the enumerated crimes clause, which defines “violent
felony,” in part, as “burglary, arson, or extortion” and crimes that “involve[] use of
explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). In listing these crimes in § 924(e)(2),
Congress referred only to the “generic” versions of those enumerated crimes. See
2
On June 26, 2015, the United States Supreme Court held that the residual clause of the
ACCA is unconstitutionally vague. Johnson v. United States, 576 U.S. ___, ___, ___, 135 S. Ct.
2551, 2557-58, 2563 (2015). Accordingly, we do not consider whether Gundy’s Georgia
burglary convictions would alternatively qualify as violent felonies under the residual clause.
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Taylor v. United States, 495 U.S. 575, 598, 110 S. Ct. 2143, 2158 (1990). Further,
an enumerated crime counts as an ACCA violent felony if its elements are the
same as, or narrower than, those of the generic offense. See id. at 599, 110 S. Ct.
at 2158.
III. DISCUSSION
A. Elements-Based Analysis of a Prior Crime
The United States Supreme Court most recently articulated how to interpret
and apply the ACCA’s enumerated crimes provision in Mathis v. United States,
579 U.S. ___, 136 S. Ct. 2243 (2016). In Mathis, the Supreme Court recognized
that its opinion in Taylor “set out the essential rule governing ACCA cases more
than a quarter century ago,” which is that “[a]ll that counts under the [ACCA] . . .
are the elements of the statute of conviction.” Mathis, 579 U.S. at ___, 136 S. Ct.
at 2251 (quotation marks omitted). “That simple point became a mantra” in the
Supreme Court’s subsequent ACCA decisions. Id. Indeed, the Supreme Court in
Mathis pointed out that this “essential rule” has governed all of its ACCA
decisions since Taylor:
At the risk of repetition (perhaps downright tedium), here are some
examples. In Shepard : ACCA “refers to predicate offenses in terms
not of prior conduct but of prior ‘convictions’ and the ‘element[s]’ of
crimes.” 544 U.S., at 19, 125 S.Ct. 1254 (alteration in original). In
James v. United States : “[W]e have avoided any inquiry into the
underlying facts of [the defendant’s] particular offense, and have
looked solely to the elements of [burglary] as defined by [state] law.”
550 U.S. 192, 214, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes
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v. United States : “[W]e consider [only] the elements of the offense [,]
without inquiring into the specific conduct of this particular offender.”
564 U.S. 1, 7, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (quoting James,
550 U.S., at 202, 127 S.Ct. 1586; emphasis in original). And most
recently (and tersely) in Descamps: “The key [under ACCA] is
elements, not facts.” 570 U.S., at ___, 133 S.Ct., at 2283.
Id. at 2251-52.
Mathis thus drove home the point that focusing on the elements of the statute
of conviction is, and always has been, the essential principle governing ACCA
cases: “For more than 25 years, we have repeatedly made clear that application of
ACCA involves, and involves only, comparing elements.” Id. at 2257.
Mathis also instructs that “[t]he comparison of elements . . . is
straightforward when a statute sets out a single (or ‘indivisible’) set of elements to
define a single crime.” Id. at 2248. In such cases, the court simply “lines up that
crime’s elements alongside those of the generic offense and sees if they match.”
Id. This is known as the “categorical approach.” See id. at 2248.
Mathis notes, however, that some criminal statutes do not set out a single
crime but “have a more complicated (sometimes called ‘divisible’) structure.” Id.
In fact, “[a] single statute may list elements in the alternative, and thereby define
multiple crimes.” Id. at 2249. If the statute sets out multiple crimes, it is
“divisible.” See id. Faced with a “divisible” statute, courts must identify which
crime in the statute formed the basis of the defendant’s conviction. See id. The
Mathis Court stressed that “[t]o address that need, this Court approved the
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‘modified categorical approach’ for use with statutes having multiple alternative
elements.” Id. Under the modified categorical approach, “a sentencing court looks
to a limited class of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what elements, a
defendant was convicted of.” Id. Courts must then compare the elements of that
identified crime to the elements of the relevant generic offense. See id.
B. Disjunctive Phrasing
Notably, the Supreme Court in Mathis explained more fully how courts
should evaluate criminal statutes with “disjunctive phrasing.” Id. at 2249, 2253.
Specifically, a state’s criminal statute may use terms like “or” that can signal either
(1) the listing of alternative elements, thus creating multiple crimes, or (2) the
listing of alternative means of committing a single offense with an indivisible set
of elements. See id. at 2249.
If the statute lists alternative “elements,” it is considered “divisible,” and
courts may employ the modified categorical approach to determine the elements of
the defendant’s conviction. Id. But if a statute merely lists “various factual
means” of committing a single offense, then the statute is considered “indivisible,”
and that indivisible set of elements will be the basis of the defendant’s conviction.
See id. And if that indivisible statute “sweeps more broadly than the generic
crime, a conviction under that law cannot count as an ACCA predicate, even if the
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defendant actually committed the offense in its generic form.” Descamps v.
United States, 570 U.S. ___, ___, 133 S. Ct. 2276, 2283 (2013).
In Mathis, the Supreme Court also instructed that “[t]he first task for a
sentencing court faced with an alternatively phrased statute is . . . to determine
whether its listed items are elements or means.” Mathis, 579 U.S. at ___, 136 S.
Ct. at 2256. This determination—“elements or means?”—is a “threshold inquiry.”
Id. Thus, in an enumerated crimes ACCA case involving a statute with disjunctive
or alternative phrasing, courts must first determine (1) whether that statutory
alternative phrasing lists multiple alternative elements, thereby creating multiple
offenses in a divisible statutory structure, or (2) whether that statutory alternative
phrasing merely lists various factual means of satisfying one or more of the
statute’s otherwise indivisible set of elements.
C. Elements or Means?
More significantly though, the Supreme Court in Mathis added to its ACCA
precedent by instructing courts how to discern “elements” from “means.”
“Elements are the constituent parts of a crime’s legal definition—the things the
prosecution must prove to sustain a conviction.” Id. at 2248 (quotation marks
omitted). “At a trial, they are what the jury must find beyond a reasonable doubt to
convict the defendant; and at a plea hearing, they are what the defendant
necessarily admits when he pleads guilty.” Id. at 2248. Facts and means, on the
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other hand, “are mere real-world things—extraneous to the crime’s legal
requirements.” Id. “They are circumstances or events having no legal effect or
consequence . . . [and] need neither be found by a jury nor admitted by a
defendant.” Id. (quotation marks and alterations omitted).
The Supreme Court in Mathis enumerated several tools courts may use to
determine whether a statute’s “listed items are elements or means” or, put another
way, whether a statute is “divisible.” Id. at 2256. In doing so, the Supreme Court
clarified when and how courts may look beyond the language of the statute, and
may even go to parts of the state court record, to determine whether a statute lists
alternative elements or alternative means. Id. at 2256-57.
As one tool, the Supreme Court explained that “the statute on its face may
resolve the issue.” Id. For example, “[i]f statutory alternatives carry different
punishments, then under Apprendi they must be elements.” Id. “Conversely, if a
statutory list is drafted to offer ‘illustrative examples,’ then it includes only a
crime’s means of commission.” Id. (citing United States v. Howard, 742 F.3d
1334, 1348 (11th Cir. 2014)). Additionally, “a statute may itself identify which
things must be charged (and so are elements) and which need not be (and so are
means).” Id.
As another tool, the Supreme Court stated that in conducting the elements-
versus-means inquiry, federal sentencing courts can look to state court decisions
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interpreting an alternatively phrased statute for guidance. Id. If a precedential
state court decision makes clear that a statute’s alternative phrasing simply lists
“alternative methods of committing one offense,” such that “a jury need not agree”
on which alternative method the defendant committed in order to sustain a
conviction, then the statute is not divisible. Id. (quotation marks and alterations
omitted). “Armed with such authoritative sources of state law, federal sentencing
courts can readily determine the nature of an alternatively phrased list.” Id.
As a third tool, the Supreme Court stated that “if state law fails to provide
clear answers, federal judges have another place to look: the record of a prior
conviction itself.” Id. The Supreme Court explained that this “peek” at the record
documents “is for the sole and limited purpose of determining whether the listed
items are elements of the offense.” Id. at 2256-57 (quotation marks and alterations
omitted). This is a “peek” to answer the threshold means-or-elements question (i.e.
the divisibility issue) and is not the full-blown modified categorical approach.
In explaining this “peek,” the Supreme Court in Mathis said, (1) “Descamps
previously recognized just this way of discerning whether a statutory list contains
means or elements,” and (2) that the Descamps Court “noted that indictments, jury
instructions, plea colloquies and plea agreements will often reflect the crime’s
elements and so can reveal—in some cases better than state law itself—whether a
statutory list is of elements or means.” Id. at 2257 n.7 (quotation marks omitted).
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The Supreme Court then instructed: “Accordingly, when state law does not resolve
the means-or-elements question, courts should resort to the record documents for
help in making that determination.” Id. (quotation marks and alterations omitted).
Most helpfully though, the Supreme Court in Mathis gave contrasting
examples of how to implement this third tool for answering the elements-versus-
means inquiry. In its first example, the Supreme Court noted that “an indictment
and correlative jury instructions [could] charge a defendant with burgling a
‘building, structure, or vehicle.’” Id. Those documents might also use “a single
umbrella term like ‘premises.’” Id. Either situation “is as clear an indication as
any that each alternative is only a possible means of commission, not an element
that the prosecutor must prove to a jury beyond a reasonable doubt.” Id.
Moreover, in each situation, “the record would . . . reveal what the prosecutor has
to (and does not have to) demonstrate to prevail.” Id. In a contrasting example,
the Supreme Court noted that “[c]onversely, an indictment and jury instructions
could indicate, by referencing one alternative term to the exclusion of all others,
that the statute contains a list of elements, each one of which goes toward a
separate crime.” Id. Again, this “peek” at the record is for answering the means-
or-elements question, also called the divisibility question.
Finally, the Supreme Court acknowledged that “such record materials will
not in every case speak plainly, and if they do not, a sentencing judge will not be
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able to satisfy Taylor’s demand for certainty when determining whether a
defendant was convicted of a generic offense.” Id. (quotation marks omitted).
However, the Supreme Court concluded that “between those documents and state
law, that kind of indeterminacy should prove more the exception than the rule.” Id.
This makes good sense because state court indictments often will charge only one
of the alternative terms, thereby indicating that a statute is divisible.
We now apply the principles and tools outlined in Mathis to this case.
D. Georgia’s Burglary Statute is Broader than Generic Burglary
We first identify the elements of generic burglary. The generic,
contemporary definition of burglary consists of these elements: (1) an unlawful or
unprivileged entry into, or remaining in, (2) a building or other structure, (3) with
intent to commit a crime therein. See Howard, 742 F.3d at 1342; Mathis, 579 U.S.
at ___, 136 S. Ct. at 2248.
Next, we examine whether Georgia’s burglary statute has these elements. At
the time of Gundy’s seven prior felony burglary offenses in 2001, 2005, and 2006,
Georgia’s burglary statute provided as follows:
A person commits the offense of burglary when, without authority and
with the intent to commit a felony or theft therein, he enters or
remains within the dwelling house of another or any building, vehicle,
railroad car, watercraft, or other such structure designed for use as the
dwelling of another or enters or remains within any other building,
railroad car, aircraft, or any room or any part thereof. . . .
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Ga. Code Ann. § 16-7-1(a) (2011). 3 Section 16-7-1 criminalizes the following
conduct: (1) entry into a dwelling house, a building, or other structures (2)
“without authority,” and (3) with “intent to commit a felony or theft therein.” Id.
Section 16-7-1 thus criminalizes conduct that would satisfy all the elements of a
generic burglary.
However, at the time of Gundy’s prior convictions, § 16-7-1 also
criminalized conduct broader than the ACCA’s generic definition of burglary.
Specifically, § 16-7-1 encompassed not only unlawful entry into buildings or other
structures, but also into vehicles, railroad cars, watercraft, or aircraft. See United
States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006); see also Howard, 742 F.3d
at 1342. Thus, § 16-7-1 is non-generic. See Bennett, 472 F.3d at 832.
The salient question, then, is whether § 16-7-1’s alternative phrasing of the
locational element—(1) dwelling house, or (2) building, vehicle, railroad car,
watercraft, or other such structure designed for use as a dwelling, or (3) any other
building, railroad car, aircraft, or any room or any part thereof—lists multiple
alternative locational “elements” or various “means” of satisfying a single,
indivisible set of elements.
3
Georgia’s burglary statute was amended on July 1, 2012, and had not been amended
prior to that since 1980. See 2012 Ga. Laws 899; 1980 Ga. Laws 770. Accordingly, the 2011
version of Ga. Code Ann. § 16-7-1 was the statute under which Gundy was previously convicted.
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Before examining the Georgia burglary statute, it is also helpful to review
the Iowa burglary statute discussed in Mathis and the Alabama burglary statute
discussed in Howard.
E. Iowa and Alabama Burglary Statutes
At issue in Mathis was the Iowa Code, which defines burglary in § 713.1 as
“[a]ny person, having the intent to commit a felony, assault or theft therein, who,
having no right, license or privilege to do so, enters an occupied structure.” Iowa
Code § 713.1 (emphasis added). The Iowa statute employs a “single locational
element,” which is “occupied structure.” Mathis, 579 U.S. at __, 136 S. Ct. at
2250; Iowa Code § 713.1.
Then, in a separate statute, § 702.12, the Iowa Code defines the term
“occupied structure” as “any building, structure, appurtenances to buildings and
structures, land, water or air vehicle, or similar place adapted for overnight
accommodation of persons.” Iowa Code § 702.12.
In Mathis, the Supreme Court concluded that the Iowa burglary statute in
§ 713.1 defined “one crime, with one set of elements” with a single locational
element of “occupied structure.” Mathis, 579 U.S. at __, 136 S. Ct. at 2250. The
Supreme Court explained that the listed locations in the separate § 702.12
definition were not “alternative elements” but were “alternative ways of satisfying
the single locational element” in § 713.1. Id. In addition to the clear statutory text
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of a single locational element in § 713.1, the Supreme Court also pointed out that
the Iowa Supreme Court had held that the alternative premises in the § 702.12
definition were “alternative method[s]” of committing the offense, “so that the jury
need not agree” whether the burgled location was a building, other structure, or
vehicle. Id. (citing State v. Duncan, 312 N.W.2d 519, 532 (Iowa 1981)).
Similarly, in Howard, the Alabama statute that created the crime of burglary
used a single locational element of “building.” 4 Section 13A-7-7 provides that “[a]
person commits the crime of burglary in the third degree if he knowingly enters or
remains unlawfully in a building with intent to commit a crime therein.” Ala.
Code § 13A-7-7(a) (2014) (emphasis added).
Then, in a separate statute in § 13A-7-1(2), the Alabama Code defines the
term “building” as “[a]ny structure which may be entered and utilized by persons
for business, public use, lodging or the storage of goods, and such term includes
any vehicle, aircraft or watercraft used for the lodging of persons or carrying on
business therein, and such term includes any railroad box car or other rail
equipment or trailer or tractor trailer or combination thereof.” Id. § 13A-7-1(2)
(2014) (emphasis added).
4
In 2015, Alabama changed the wording of the burglary statute in § 13A-7-7. 2015 Ala.
Laws Act 2015-185. Then in 2016, the state also amended the definitional provision in § 13A-7-
1. 2016 Ala. Laws 2016-402. Howard, which was decided in 2014, construed the pre-2015
versions of these provisions.
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In Howard, this Court explained why the Alabama burglary statute was not
divisible. The Alabama statute did not “set[] out one or more elements of the
offense in the alternative—for example, stating that burglary involves entry into a
building or an automobile.” Howard, 742 F.3d at 1348. “Instead, Alabama Code
§ 13A-7-1(2) provides one definition of building and then includes a non-
exhaustive list of things that fall under that definition.” Id. In Howard, this Court
further pointed out that the word “includes” in § 13A-7-1(2) showed that the
drafters “intended to provide a non-exhaustive list of examples to clarify the
meaning of the term.” Id. (quoting Jean v. Nelson, 863 F.2d 759, 777 (11th Cir.
1988)).5
5
Similar to the Iowa and Alabama statutes, the South Carolina Code uses a single
locational element. The South Carolina statute that creates the crime is § 16-11-312(A), which
provides that “[a] person is guilty of burglary in the second degree if the person enters a dwelling
without consent and with intent to commit a crime therein.” S.C. Code Ann. § 16-11-312(A)
(emphasis added).
South Carolina then has two other separate statutes that define “dwelling” and “dwelling
house.” In a separate statute, § 16-11-310, the South Carolina Code defines “dwelling,” stating
that “ʻ[d]welling’ means its definition found in Section 16-11-10 and also means the living
quarters of a building which is used or normally used for sleeping, living, or lodging by a
person.” Id. § 16-11-310. In turn, § 16-11-10 provided that “a dwelling house, any house,
outhouse, apartment, building, erection, shed or box in which there sleeps a proprietor, tenant,
watchman, clerk, laborer or person who lodges there with a view to the protection of property
shall be deemed a dwelling house.” Id. § 16-11-10. Additionally, the word “building,” as used
in § 16-11-310, “means any structure, vehicle, watercraft, or aircraft.” Id. § 16-11-310(1).
Georgia’s burglary statute is not at all like South Carolina’s. See United States v. Lockett, 810
F.3d 1262 (11th Cir. 2016) (outlining this complex statute and holding that the South Carolina
burglary statute is not divisible).
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F. Georgia’s Burglary Statute
We now turn to the text of Georgia’s burglary statute. “[S]entencing courts
should usually be able to determine whether a statute is divisible by simply reading
its text . . . .” Howard, 742 F.3d at 1346.
In contrast to Iowa’s statute in Mathis and the Alabama statute in Howard,
the text of the Georgia burglary statute in § 16-7-1, that creates the crime, does not
use a single locational element (like “occupied structure” or “building”). The
Georgia law also does not contain a definition elsewhere that provides a non-
exhaustive laundry list of other places or locations. The Georgia statute also does
not use the term “includes.”
Rather, the Georgia burglary statute, that creates the crime of burglary, uses
alternative locational elements. Section 16-7-1 provides that “[a] person commits
the offense of burglary when, without authority and with the intent to commit a
felony or theft therein, he enters or remains within”:
the dwelling house of another or
any building, vehicle, railroad car, watercraft, or other such structure
designed for use as the dwelling of another or
within any other building, railroad car, aircraft, or any room or any
part thereof.
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Ga. Code Ann. § 16-7-1(a) (2011) (emphasis added).6 Rather than a single
locational element, the plain text of the Georgia statute has three subsets of
different locational elements, stated in the alternative and in the disjunctive.
Each of the three subsets enumerates a finite list of specific structures in
which the unlawful entry must occur to constitute the crime of burglary. In
doing so, the burglary statute has multiple locational elements effectively
creating several different crimes. See Descamps, 570 U.S. at __, 133 S. Ct.
at 2281 (explaining that an example of a divisible statute is one “stating that
burglary involves entry into a building or an automobile”).
This is why under Georgia law a prosecutor must select, identify, and
charge the specific place or location that was burgled. For example, the
Georgia Court of Appeals has held that a burglary indictment must charge
the particular place or premises burgled and the specific location of that
place or premises. See Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App.
1983) (stating that “where the defendant is charged with burglary, the
indictment must specify the location of the burglary” and concluding that the
indictment was sufficient where it charged a “building,” identified as “the
Financial Aid Office and Alumni Office, located at Fort Valley State
6
This was the text of the Georgia burglary statute from 1980 to 2011. Prior to1968, the
burglary statute also had this provision, which is no longer in the statute: “All out-houses
contiguous to or within the curtilage or protection of the mansion or dwelling-house, shall be
considered as part of the same.” Compare Ga. Code 1933, § 26-2401 with Ga. Laws 1968, § 26-
2401, p. 1249.
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College, Fort Valley, Peach County, Georgia”); State v. Ramos, 243 S.E.2d
693, 693 (Ga. Ct. App. 1978) (stating it is not necessary to prove “the
specific place” to obtain a theft-by-taking conviction, but it is necessary to
prove the “specific location” to obtain a burglary conviction); State v. Green,
218 S.E.2d. 456, 457 (Ga. Ct. App. 1975); Chester v. State, 140 S.E.2d 52,
53 (Ga. Ct. App. 1964) (“It must be alleged and proved in an indictment for
burglary that there was a breaking and entering of one of the classes of
buildings set out in the statute.”); Kidd v. State, 146 S.E. 35, 35 (Ga. Ct.
App. 1928) (holding that the indictment was sufficient where it identified the
location burgled as the protected structure of “railroad cars”).
The U.S. Supreme Court has told us that “[a] prosecutor charging a violation
of a divisible statute must generally select the relevant element from the list of
alternatives.” Descamps, 570 U.S. at __, 133 S. Ct. at 2290. That the Georgia
prosecutor must select and identify the locational element of the place burgled—
whether the place burgled was a dwelling, building, railroad car, vehicle, or
watercraft—is the hallmark of a divisible statute. Indeed, in every case cited by
Gundy and the government, the indictment specified the type of place or premises
burgled. See, e.g., Weeks, 616 S.E.2d at 852 (a “dwelling house”); Davis v. State,
706 S.E.2d 710, 714 (Ga. Ct. App. 2011) (a “dwelling house”); Smarr v. State, 732
S.E.2d 110, 114-15 (Ga. Ct. App. 2012) (a “building” that served as a gas station);
21
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Morris, 303 S.E.2d. at 494 (a “building” used as a “Financial Aid Office and
Alumni Office”).
That the prosecutor must select and identify the relevant statutory locational
element is well illustrated by the Georgia court’s decision in DeFrancis v.
Manning, 246 Ga. 307 (1980). As quoted above, one of the alternative locational
elements in the Georgia statute is a “vehicle . . . designed for use as the dwelling of
another.” Ga. Code Ann. § 16-7-1(a) (2011). The indictment in DeFrancis
charged that the defendant “unlawfully without authority and with intent to commit
a theft therein entered that certain vehicle, same being a gray Ford truck, being the
property of and owned by McKesson Wine and Spirits Company, a division of
Foremost-McKesson, Inc., said truck being located on 10th Avenue West in the
City of Cordele, Crisp County, Georgia, at the time of said entry therein by the said
accused.” 246 Ga. at 307. The Georgia Supreme Court set aside the defendant’s
burglary conviction because the indictment did not charge that the vehicle was
“designed for use as a dwelling.” Id. at 308. The Georgia Supreme Court held,
“that the vehicle was designed as a dwelling was an essential element of the
offense which must be alleged.” Id. (emphasis added). The fact that under Georgia
law the indictment must charge the type of place or location with such specificity
further demonstrates that § 16-7-1’s statutory listing of alternative locations for
committing a burglary constitutes an enumeration of alternative elements.
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For all of the above reasons, we conclude that the alternative locational
elements in the Georgia statute are divisible. See United States v. Martinez-
Garcia, 625 F.3d 196, 198 (5th Cir. 2010) (concluding that the Georgia burglary
statute in § 16-7-1(a) is divisible and that the defendant’s Georgia conviction for
burglary of a dwelling house was a crime of violence under U.S.S.G. § 2L1.2). 7
G. The Elements of Gundy’s Prior Burglary Convictions are Generic
Our final task is to determine which of the alternative elements in Georgia’s
burglary statute formed the basis of Gundy’s prior burglary convictions and
whether those elements match the generic definition of burglary. Having
concluded that Georgia’s burglary statute is divisible, we may use the modified
categorical approach. Mathis, 579 U.S. at __, 136 S. Ct. at 2249. Under that
approach, we look to “a limited class of documents (for example, the indictment,
jury instructions or plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of.” Id. These are known as Shepard
7
The dissent has found and cites Mobley v. State. 296 S.E.2d 617, 618 (Ga. Ct. App.
1982) (describing where the burglary occurred as the “Social Circle Drug Store, the property of
Billy Snipes, located in the City of Social Circle, Walton County, Georgia”) (emphasis added).
The dissent faults our analysis because this decision did not use the word “building.” We are
confident that the term “drug store” sensibly means a building, not a vehicle, railroad car, or
watercraft. While one could theoretically operate a drug store out of a vehicle, we are not
required to engage in such farfetched hypotheticals, especially given DeFrancis and other
Georgia decisions discussed above. If anything, the Mobley decision supports our conclusion
that the prosecutor must charge and identify as an element the type of place that was burgled and
its location.
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documents. Id.; Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263
(2005).
The indictment for each one of Gundy’s prior Georgia burglary convictions
charged the type of place and the address of each burgled location. 8 Two
indictments charged that Gundy unlawfully, and with the intent to commit theft
therein, entered a “dwelling house”: (1) “the dwelling house of another, to wit:
Chiffon Jones, located at 403 Grand Street; Sandersville, Georgia;” and (2) “the
dwelling house of another, to wit: McArthur Jordan, located at 321 Tybee Street,
Sandersville, Georgia.” Two other indictments charged that Gundy “unlawfully,
without authority, and with intent to commit a theft therein” entered a “business
house” described as: (1) “the business house of another, to wit: David Bernice
Hartley d/b/a E-Z Coin Laundry, located at East McCarty Street, Sandersville,
Georgia;”9 and (2) “the business house of another, to wit: Bill Murphy d/b/a
Murphy & Palmer Feed & Seed Company, located at 232 North Smith Street,
Sandersville, Georgia.” Thus, all of the burgled locations were either dwelling
houses or buildings housing a business, which are generic burglaries. Importantly,
8
Certified copies of all of Gundy’s state court indictments and Gundy’s guilty pleas
thereto are in the record and are attached as an appendix to this opinion.
9
Two other indictments charged that Gundy burgled this same E-Z Coin Laundry on East
McCarty Street in Sandersville, Georgia but on separate occasions during the year 2000: July
12; August 23; December 12; and December 14. The December 12 and December 14 incidents
were charged as two separate counts of burglary in the same indictment. All told, Gundy was
charged with and pled guilty to seven separate burglaries in six different indictments.
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none were vehicles, railroad cars, watercrafts, or aircrafts, which are not generic
burglaries.10
Accordingly, Gundy’s state court indictments make clear that Gundy’s
Georgia burglary convictions involved these three elements: (1) an unlawful entry
(2) into a dwelling house or building (3) with intent to commit a crime therein. See
Ga. Code Ann. § 16-7-1(a) (2011). These elements substantially conform to the
generic definition of burglary. See Howard, 742 F.3d at 1342. Therefore, Gundy’s
prior Georgia burglary convictions qualify as violent felonies under the ACCA’s
enumerated crimes clause. The district court did not err in sentencing Gundy as an
armed career criminal.
H. Dissent’s Discussion of Divisibility
The dissent relies heavily on Lloyd v. State, 308 S.E.2d 25 (Ga. Ct. App.
1983), but that case had nothing to do with the locational element, which the
Georgia Supreme Court in DeFrancis told us is an “essential element.” 246 Ga. at
308. The sole issue in Lloyd was whether the evidence was sufficient to prove
“lack of authority on the defendant’s part to enter the building.” Lloyd, 308 S.E.2d
at 25. The officer testified that “[t]he front door of the warehouse had been pried
10
While the dissent focuses on jury instructions, Gundy did not proceed to trial but pled
guilty. Here, we rely on the indictments, not pattern jury instructions never given. Indeed, the
Supreme Court has told us that, in cases where the defendant pled guilty, we can look at the
“closest analogs to the jury instructions,” and that they are the indictments or charging
information. Shepard, 544 U.S. at 20, 125 S. Ct. at 1249; see also Taylor, 495 U.S. at 602, 110
S. Ct. at 2160.
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open.” Id. The Lloyd court stated: “there are two essential elements which must
be established by the State: 1) lack of authority to enter the dwelling or building;
2) intent to commit a felony or theft.” Id. (emphasis added). The Lloyd court
concluded that the evidence in the officer’s testimony “was sufficient to show the
defendant’s lack of authority to enter the building.” Id. at 26. When placed in
context, the two-element statement in Lloyd is about two elements of “lack of
authority to enter” and “intent.” See id. at 25. There was no issue in Lloyd about
the location burgled or the essential locational element required under the Georgia
statute.
Rather, the Georgia Supreme Court in DeFrancis tells us that the location
burgled is a third “essential element” and that the locational element must be
identified and charged with particularity in the indictment. See 246 Ga. at 308.
In any event, as to its divisibility analysis, the dissent acknowledges that “if
state law fails to provide clear answers [about a statute’s divisibility], federal
judges have another place to look: the record of a prior conviction itself.” If
nothing else, perhaps the discussions in the majority opinion and the dissent
arguably suggest that Georgia law may not be as clear as either concludes. So if
the Georgia law is not clear as to elements or means, what happens next? We
agree with the dissent’s divisibility analysis that the next step would be Mathis’s
“peek at the record.” The dissent, in its divisibility analysis, peeks at the record
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and points out that two indictments specified a “dwelling house” and three
specified a “business house.” Where we differ is this. Those terms do not “speak
plainly” enough for the dissent. We, however, conclude that the terms “dwelling
house” and “business house” satisfy Taylor’s demand for certainty that Gundy’s
convictions were for burglary of a building or other structure, which is a generic
burglary.
III. CONCLUSION
In light of the foregoing, we affirm Gundy’s conviction and sentence.
AFFIRMED.
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JILL PRYOR, Circuit Judge, dissenting:
The question we confront today is whether Nathan Gundy’s prior burglary
convictions in Georgia provide a basis for the enhanced federal sentence he
currently serves. The majority and I agree on the basic framework for answering
this question and even on how that framework applies here, up to a point. But we
differ sharply in our views of Georgia law regarding the elements of the crime of
burglary.
The majority and I agree that the Georgia burglary statute under which Mr.
Gundy previously was convicted sweeps more broadly than the generic crime of
burglary that can serve as a basis for an enhanced sentence. I cannot agree,
though, with the balance of the majority’s analysis. I dissent because we cannot,
consistent with Supreme Court and our own precedent, divide and narrow the
Georgia statute in a way that would permit us to construe Mr. Gundy’s burglary
convictions as authorizing the term of incarceration he now serves. And I dissent
because the majority’s analysis affirming Mr. Gundy’s enhanced sentence has
serious implications far beyond this case. The majority’s misinterpretation of
Georgia law will decide the fate of countless individuals who stand to serve
unjustly expanded prison terms as a result.
The district court ruled that Mr. Gundy’s prior Georgia burglary convictions
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each constituted a “violent felony” and thus support an enhanced sentence under
the Armed Career Criminal Act, (“ACCA”), 18 U.S.C. § 924(e). As relevant here,
the term “violent felony” includes the crime of burglary. Id. § 924(e)(2)(B)(ii).
But the crime of burglary’s inclusion among ACCA’s violent felonies does not
mean that a conviction under Georgia’s burglary statute qualifies as a violent
felony. For Georgia burglary to qualify, all or part of the statute must criminalize
what the Supreme Court has termed “generic” burglary; that is, it must “contain[]
at least the following elements: an 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). If the statute in its entirety criminalizes
generic burglary, then our analysis is easy: a violation of the statute can support an
ACCA enhancement. But if it doesn’t, we have to decide whether we can divide
the statute up into elements that make up generic burglary. This task is not as easy,
as state statutes can be complex, but the Supreme Court has on several occasions
given us guidance, most recently in United States v. Mathis, 136 S. Ct. 2243
(2016). There, the Court reiterated that the key question is whether the state statute
sets forth alternative elements, which means that the statute is divisible, or merely
alternative factual means of committing the offense, which means that the statute is
not divisible, and therefore a conviction under it cannot serve as a predicate
offense for an ACCA enhancement. See id. at 2249.
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The majority and I agree that with its inclusion of vehicles, railroad cars,
watercraft, and aircraft as types of locations that can be burglarized, Georgia’s
burglary statute is broader than the generic crime of burglary, which applies only
to structures. Indeed, in considering a similarly broad state statute, Mathis held
that “vehicles” are not structures and thus fall outside the scope of generic
burglary. See 136 S. Ct. at 2250. But turning to the question of whether these
alternative types of locations are elements of the crime of burglary in Georgia or
merely means of committing it, the majority and I part ways. I disagree that the
burglary statute’s text and structure support the majority’s conclusion that the types
of locations the statute lists are elements rather than means. This conclusion
ignores the Supreme Court’s guidance and the plain meaning of the Georgia
statute. I also disagree that Georgia case law supports the majority’s conclusion.
To the contrary, this case law unambiguously defines the elements of the crime of
burglary, and the different types of locations that can be burglarized are not
separate elements. The majority errs in determining that “burglary of a dwelling”
and “burglary of a building” are separate crimes in Georgia.
Even if I were to accept, for the sake of argument, that Georgia law is
ambiguous on whether the different types of locations that can be burglarized are
elements or means of committing the offense, the inquiry would not end there.
Mathis instructs courts considering statutes that are ambiguous in this respect to
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“peek” at the record documents of prior convictions “for the sole and limited
purpose of determining whether the [statute’s] listed items are elements of the
offense.” 136 S. Ct. at 2256–57 (internal quotation marks and alterations omitted).
But in this case, those documents leave us unable to “satisfy [the] demand for
certainty when determining whether a defendant was convicted of a generic
offense” that can serve as an ACCA predicate. Id. at 2257 (internal quotation
marks omitted). After all, of the two locational terms listed in Mr. Gundy’s
indictments, one does not even appear in Georgia’s burglary statute and thus
cannot constitute an element. Mr. Gundy’s indictments therefore fail to
demonstrate that the different types of locations where the burglaries occurred
were elements that the jury had to find beyond a reasonable doubt. In my view,
these points lead to only one possible conclusion: Georgia’s burglary statute is
broader than generic burglary, and is indivisible; it cannot be a violent felony
under ACCA. I would reverse and remand for the district court to resentence Mr.
Gundy without an ACCA enhancement.
I. DISCUSSION
The analytical framework on which the majority and I agree compels the
conclusion that the Georgia burglary statute under which Mr. Gundy was convicted
is indivisible. The statute defines burglary as follows:
A person commits the offense of burglary when, without authority and
with the intent to commit a felony or theft therein, he enters or
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remains within the dwelling house of another or any building, vehicle,
railroad car, watercraft, or other such structure designed for use as
the dwelling of another or enters or remains within any other building,
railroad car, aircraft, or any room or any part thereof. . . .
O.C.G.A. § 16-7-1(a) (2011) (emphasis added). 1 Below, I demonstrate this
statute’s indivisibility in two parts. First, I review Georgia law, which tells us the
elements of burglary. This is where I would end our inquiry, as we are not free to
contradict Georgia’s courts on matters of state law. See Schad v. Arizona, 501 U.S.
624, 636 (1991).
Second, because the majority reads Georgia law to reach the opposite
conclusion, I assume for the sake of argument that state law is ambiguous on the
elements-versus-means question and, as Mathis instructs, look beyond it to the
record of Mr. Gundy’s convictions for the answer. But the record, too, is
inconclusive. Thus, even assuming Georgia law is ambiguous such that we can
look to Mr. Gundy’s record at all, we would still lack the “certainty” required to
determine that the various types of locations listed in Georgia’s statute are
elements rather than means. Mathis, 136 S. Ct. at 2257 (internal quotation marks
omitted). Without that certainty, a conviction under the statute cannot qualify as a
violent felony under ACCA.
1
This version of the statute, which has since been amended, is the relevant one for our
purposes because it was in effect at the time of Mr. Gundy’s burglary convictions. When I refer
to the Georgia burglary statute, I refer to this version.
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A. Georgia Law Establishes the Georgia Burglary Statute’s Indivisibility.
Georgia’s courts have set forth the elements of burglary, making it clear that
the state’s burglary statute is indivisible. The Georgia Court of Appeals declared
in a precedential decision that it is “readily apparent there are two essential
elements [of the crime of burglary] which must be established by the State: 1) lack
of authority to enter the dwelling or building; 2) intent to commit a felony or
theft.” Lloyd v. State, 308 S.E.2d 25, 25 (Ga. Ct. App. 1983) (emphasis added).
Entering without authority either a “dwelling or building” is part of the same
“essential element[],” a single element encompassing the types of locations that
can be burglarized.2 Id.
So why does the Georgia courts’ grouping of “dwelling” and “building” into
a single element necessarily answer the elements-versus-means question with
respect to vehicles, railroad cars, and watercraft? It does so for two reasons. First,
the statute’s use of the term “dwelling” itself includes locations other than the type
of structures that generic burglary encompasses. In Georgia, a person commits the
crime of burglary when, without authority and with the intent to commit a felony
2
Other Georgia decisions have framed the location element in slightly different terms,
substituting “dwelling place” or “dwelling house” for “dwelling.” See, e.g., Roberts v. State, 710
S.E.2d 878, 881 (Ga. Ct. App. 2011) (upholding validity of jury instructions where court charged
jury on the burglary statute’s “requirement of proof that a defendant entered ‘the building or
dwelling place of another’”); Hart v. State, 517 S.E.2d 790, 792 (Ga. Ct. App. 1999) (upholding,
as “sufficient to inform the jury of the essential elements of the offense” of burglary, jury
instruction that stated, in part, a defendant “enters in a building or dwelling house of another”).
But these slight variations make no difference to the elements-versus-means analysis.
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or theft therein, he enters or remains within “. . . any building, vehicle, railroad car,
watercraft, or other such structure designed for use as the dwelling of
another . . . .” O.C.G.A. § 16-7-1(a) (emphasis added). By using the restrictive
clause “or other such structure designed for use as the dwelling of another,” the
statute unambiguously defines vehicles, railroad cars, and watercraft as possible
dwellings. Id. So a defendant may be convicted of burglarizing a “dwelling”
whether he has entered unlawfully an apartment, which would be a structure falling
within the purview of generic burglary structure, or a motorhome or a houseboat,
which would not.
Second, in the statute “building” appears twice, both times as part of a
series. Both series include types of locations that generic burglary excludes. As a
matter of syntax and logic, if one item in the series, “building,” is not a separate
element because the Georgia courts tells us it is part of the same element as
“dwelling,” then the others in the series are not separate elements either. For these
reasons, Lloyd’s statement of burglary’s elements, which groups “building” and
“dwelling” together, compels the conclusion that the location types listed in the
Georgia burglary statute are alternate means rather than elements.
An examination of Georgia jury instructions confirms Lloyd’s statement of
burglary’s elements. The language used in jury instructions is significant because
it must always include the crime’s elements, that is, “what the jury must find
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beyond a reasonable doubt to convict the defendant.” Mathis, 136 S. Ct. at 2248.
Georgia courts consistently have upheld jury instructions listing “building or
dwelling” as part of a single element. See, e.g., Dukes v. State, 592 S.E.2d 473,
477 (Ga. Ct. App. 2003) (upholding against unspecified claim of error jury
instruction that “it’s only necessary to prove burglary in Georgia that . . . the
accused did, without authority, enter a building or dwelling house of another with
the intent to commit the alleged felony”); Hart v. State, 517 S.E.2d 790, 792–93
(Ga. Ct. App. 1999) (deeming “sufficient to inform the jury of the essential
elements of” burglary a jury instruction that included “enters in a building or
dwelling house of another”); see also, e.g., Long v. State, 705 S.E.2d 889, 674–75
(Ga. Ct. App. 2011) (calling “complete and correct” a jury instruction that included
“enters any building or dwelling place of another”). Indeed, Georgia’s pattern jury
instructions for burglary state that a person commits burglary when “without
authority, that person enters . . . any building or dwelling place of another . . . with
the intent” to commit theft or another felony. GAJICRIM 2.62.10 (4th ed. 2016);
id. 2.62.20 (4th ed. 2016).3 Georgia jury instructions and the cases approving them
thus confirm Lloyd’s statement of the burglary elements. That is, burglary of a
dwelling and burglary of a building are not separate crimes.
3
Although dated 2016, these instructions apply to cases “where the offense is alleged to
have occurred before July 1, 2012” because they reference the pre-2012 statute that we interpret
today. See GAJICRIM 2.62.10.
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The majority dismisses Lloyd’s clear statement of law, asserting that the case
“had nothing to do with the locational element” at issue here. Maj. Op. at 26.
True, the types of places that could be burglarized were not at issue in Lloyd. But
accepting the majority’s position requires us to assume that the Georgia Court of
Appeals meant something other than what it said when it described the elements of
the crime. And the numerous cases approving jury instructions with language like
Lloyd’s confirm that it correctly stated burglary’s elements.
Rejecting these clear statements by Georgia courts of the elements of
Georgia burglary, the majority argues that the text and structure of the burglary
statute unambiguously establish its divisibility and that case law confirms this
interpretation. First, the majority contends that the statute’s disjunctive phrasing
and lack of a single locational term with a separate definition section make it
divisible. But Mathis and persuasive authority counsel otherwise. Second, it
asserts that Georgia’s burglary statute “enumerates a finite list of specific
structures,” as a divisible statute must. The statute’s plain text contradicts this
assertion, however. Third, the majority points to Georgia cases about the
requirements for an indictment as confirming its textual interpretation. In fact,
though, these cases concern notice to the defendant and double jeopardy, not the
elements of the crime. I address each of the majority’s points in turn.
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First, the majority contends that the statute’s use of the disjunctive and lack
of a single locational term with a separate definition section establish its
divisibility. Relying solely on the word “or,” and making creative use of spacing
to amplify its point, the majority determines that the statute “has three subsets of
different locational elements, stated in the alternative and in the disjunctive.” See
Maj. Op. at 20. The majority then contrasts this structure with those of the state
burglary statutes held to be indivisible in Mathis, 136 S. Ct. at 2250 (Iowa), United
States v. Lockett, 810 F.3d 1262, 1269–70 (11th Cir. 2016) (South Carolina), and
United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014) (Alabama). See
Maj. Op. at 19–20, 19 n.5. The majority notes that each of these other statutes
included “a single locational element” and then in a separate section or statute
defined that term with a list of alternative means of committing the crime. Id.
Georgia’s burglary statute, however, contains no single locational element with a
separate definitions section, and so the majority posits its list of alternate locations
must be elements rather than means. Maj. Op. at 20.
As the majority acknowledges, Maj. Op. at 9–10, Mathis makes clear that
alternative phrasing is a necessary—but by no means sufficient—condition to read
a statute as setting out alternative elements. See 136 S. Ct. at 2256 (“The first task
for a sentencing court faced with an alternatively phrased statute is thus to
determine whether its listed items are elements or means.”). Mathis then lists two
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attributes of an alternatively phrased statute that would confirm its divisibility.
First, “[i]f statutory alternatives carry different punishments, then under Apprendi 4
they must be elements.” Id. Second, “a statute may itself identify which things
must be charged (and so are elements) and which need not be (and so are means).”
Id. Neither is present in this case, however. Absent these attributes, or something
equally compelling, alternate phrasing is neutral with respect to the elements-
versus-means inquiry.
Although state statutes with a single locational element defined separately
have been held to be indivisible in Mathis, Lockett, and Howard, there is no truth
to the converse, that the lack of a single locational element with a separate
definition section means a disjunctively phrased statute is divisible. Indeed, one of
our sister circuits recently held a statute with disjunctive language and without a
separate definition section to be indivisible. See United States v. Barcenas-Yanez,
826 F.3d 752 (4th Cir. 2016) (holding Texas aggravated assault statute was
indivisible as to intent element where assault required “intentionally, knowingly, or
recklessly caus[ing] bodily injury to another”). Quite simply, the fact that the
Georgia statute has a different structure proves nothing.
Second, the majority asserts as supporting its textual interpretation that the
burglary statute sets out a “finite list of specific structures.” Maj. Op. at 20. This
4
Apprendi v. New Jersey, 530 U.S. 466, (2000).
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finite list—along with the disjunctive phrasing and lack of a single locational term
with a separate definition section discussed above—leads the majority to the
conclusion that Georgia’s burglary statute sets out “multiple locational elements
effectively creating several different crimes.” Maj. Op. at 20.
The wording of Georgia’s burglary statute, however, contradicts the
majority’s assertion. The statute includes among its list of locations that can be
burglarized “other such structure[s] designed for use as the dwelling of another.”
O.C.G.A. § 16-7-1(a) (2011). The phrase “other such structure[s]” cannot be part
of a finite list because it is necessarily expansive: Any type of structure that is
designed for use as a dwelling would qualify. For example, a travel trailer,5
although absent from the list, undoubtedly qualifies as “such [a] structure designed
for use as the dwelling of another” that is capable of being burglarized in Georgia.
While Georgia’s statute does not use the word “includes,” see Maj. Op. at 18–19
(noting that the Georgia statute does not use the term “includes,” unlike the
Alabama statute held indivisible in Howard), the phrase “other such” serves
essentially the same function. The statute lays out no finite list of structures; thus
it cannot “effectively creat[e] several different crimes.” Maj. Op. at 20.
5
“A travel trailer is a non-motorized RV designed to be towed by a pickup truck, SUV
or, for smaller units, even a car.” “What is a travel trailer,” RVNetLinx, http://rvnetlinx.com/
wprvtypes.php?cat=tt [https://perma.cc/KR2P-YRH4] (last visited Nov. 18, 2016); see also
United States v. Guerrero-Navarro, 737 F.3d 976, 979 (5th Cir. 2013) (“Consider, for example .
. . travel trailers. These are not buildings, but they may nevertheless be dwellings in the ordinary
sense. So although a certain venue may not qualify as a Taylor-approved building or structure, it
may still . . . constitute a dwelling.” (citations omitted)).
39
Case: 14-12113 Date Filed: 11/23/2016 Page: 40 of 73
Third, the majority argues that Georgia case law concerning the adequacy of
indictments confirms its interpretation. It contends that because Georgia
prosecutors must specify the location of a burglary in the indictment, the different
locations must be elements. This argument confuses location (e.g., “the Financial
Aid Office and Alumni Office, located at Fort Valley State College, Fort Valley,
Peach County, Georgia”), Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App.
1983), with type of location (e.g., a “building”). Id. It is true that an indictment
charging burglary must identify the specific location and ownership of the
allegedly burglarized place. See id. But Georgia law imposes no requirement that
an indictment include the type of location burglarized. Oftentimes, as in the case
of the Financial Aid Office building in Morris, an indictment will identify both.
But it need not do so.6 For example, the Georgia Court of Appeals approved of
“Social Circle Drug Store, the property of Billy Snipes, located in the City of
Social Circle, Walton County, Georgia” as a sufficient description of a burglarized
location in an indictment. Mobley v. State, 296 S.E.2d 617, 618 (Ga. Ct. App.
1982). This indictment specified the location of the burglary, but not the type of
6
The majority cites two cases, Chester v. State, 140 S.E.2d 52 (Ga. Ct. App. 1964), and
Kidd v. State, 146 S.E. 35 (Ga. Ct. App. 1928), that predate the 1968 enactment of the burglary
statute at issue in this case. The previous statute contained entirely different elements—as the
majority’s quotation of Chester, which includes “breaking and entering” among these elements,
demonstrates—so cases interpreting it are irrelevant to our analysis. Maj. Op. at 21 (quoting
Chester, 140 S.E.2d at 53).
40
Case: 14-12113 Date Filed: 11/23/2016 Page: 41 of 73
location that was burglarized. Was Billy Snipes’s drug store in a building? 7
Almost certainly. But the indictment itself neglects to say so and was nevertheless
upheld—meaning that the type of location the defendant allegedly entered need not
be specified in the indictment.
More fundamentally, the majority misapprehends the purpose of requiring
the burglary’s location to be included in indictments. The majority speculates that
the multiple types of locations listed in the Georgia burglary statute must be “why
under Georgia law a prosecutor must select, identify, and charge the specific place
or location that was burgled.” Maj. Op. at 21. This speculation lacks support.
Rather, as a case the majority cites makes clear, an indictment must include the
location burglarized in order “to give the defendant ample opportunity to prepare a
defense.” Morris, 303 S.E.2d at 494. The many indictment cases on which the
majority relies never considered whether the types of locations listed in Georgia’s
burglary statute are alternative elements or means of committing the crime because
these cases were concerned only with the need to “inform the accused as to the
7
The majority critiques my reliance on Mobley because it is “confident that the term
‘drug store’ sensibly means a building, not a vehicle, railroad car, or watercraft.” Maj. Op. at 23
n.7. Perhaps. But what if an indictment stated that the defendant burglarized “the Orient
Express Restaurant, 2921 Paces Ferry Rd SE, Cobb County, Georgia”? Certainly this would
provide a location sufficient to satisfy Morris. See 303 S.E.2d at 494. And we might feel
confident that the term “restaurant” sensibly means a building. Further research would reveal,
however, that the Orient Express Restaurant is housed in a railroad car. See Marisa Roman, This
Train in Georgia is Actually a Restaurant and You Need to Visit, OnlyInYourState (Aug. 27,
2016), http://www.onlyinyourstate.com/georgia/restaurant-train-in-ga/ [https://perma.cc/4UJT-
UMHP].
41
Case: 14-12113 Date Filed: 11/23/2016 Page: 42 of 73
charges against him so that he may present his defense and not . . . be taken by
surprise” and to “protect the accused against another prosecution for the same
offense.” Smarr v. State, 732 S.E.2d 110, 115 (Ga. Ct. App. 2012).
One of these cases deserves particular attention. The majority argues that
DeFrancis v. Manning, 271 S.E.2d 209 (Ga. 1980), demonstrates “[t]hat the
prosecutor must select and identify the relevant statutory locational element” when
charging Georgia burglary. Maj. Op. at 22. I take it that by this the majority
means that the prosecutor must specify whether the store, restaurant, or dwelling
burglarized was in a building or a railroad car. But DeFrancis demonstrates no
such thing. In DeFrancis, the Georgia Supreme Court upheld a lower court’s
decision overturning a defendant’s conviction for burglarizing a truck. 271 S.E.2d
at 210. The appellate court held the conviction was invalid because Georgia law
only criminalized entering without authority “any . . . vehicle . . . designed for use
as the dwelling of another,” id. (quoting O.C.G.A. § 26-1601 (1968)), and “no
proof was offered at trial that the truck was ‘designed for the use as the dwelling of
another.’” Id. For the same reason, the DeFrancis court held that the indictment
was flawed because it failed to allege that the truck was designed as a dwelling.
See id. This omission was not error because—as the majority incorrectly
surmises—Georgia burglary indictments must always include a single type of
location. The question in DeFrancis was not whether the burglary occurred in a
42
Case: 14-12113 Date Filed: 11/23/2016 Page: 43 of 73
truck versus a building, but rather whether the truck met the statute’s requirement
that it be designed for use as a dwelling. Thus, the indictment in DeFrancis was
flawed because it did not allege a crime at all.8 In other words, DeFrancis did not
bar a burglary indictment from listing “building, dwelling, truck, or railroad car
designed for use as a dwelling.” It merely said that an indictment must specify a
location that the statute makes it a crime to enter.
The majority’s many indictment cases are unhelpful because they offer no
answer to the determinative question: at trial, what must a Georgia jury find
beyond a reasonable doubt to convict the defendant of burglary? See Mathis, 136
S. Ct. at 2248. Lloyd and the many cases approving jury instructions similarly
listing burglary’s elements, by contrast, answer that very question: the jury must
find that the defendant entered a building or dwelling, but not whether it was a
building or a dwelling or what type of dwelling. The Georgia burglary statute thus
is indivisible as between buildings and all types of dwellings, including vehicles,
boats, and railroad cars.
B. The Record of Mr. Gundy’s Convictions Fails to Prove Georgia
Burglary Is Divisible.
We need not (indeed, may not) look past clear Georgia law, which should
end our inquiry. But given our disagreement about the import of the cases it cites
8
Burglary did not cover non-dwelling automobiles, and the crime of illegally entering an
automobile was not enacted until two years after Mr. DeFrancis’s conviction. See O.C.G.A. §
16-8-18; see also Ga. L. 1976, p. 186, § 1.
43
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and the cases I cite above, the majority and I can agree that perhaps Georgia law is
at least ambiguous on the elements-versus-means question. The Supreme Court
advised us in Mathis that “if state law fails to provide clear answers [about a
statute’s divisibility], federal judges have another place to look: the record of a
prior conviction itself.” 9 136 S. Ct. at 2256. Unfortunately, though, the language
9
While I undertake this analysis for the sake of argument, I am skeptical that the
language in one person’s indictment alone could ever establish that a statute is divisible. Mathis
dictates that courts “may look only to the elements of the offense, not to the facts of the
defendant’s conduct.” 136 S. Ct. at 2251 (internal quotation marks and alterations omitted). If
we were to conclude that Georgia’s burglary statute is divisible solely on the language in Mr.
Gundy’s indictments, I fear we would be violating this foundational precept.
Didn’t Mathis expressly authorize inquiry into the language of a defendant’s indictments?
Yes and no. Yes, Mathis allowed recourse to record documents like indictments, but not, in my
view, in a way that would allow a defendant’s indictments alone to prove conclusively that a
statute is divisible. To be sure, Mathis provided relatively little guidance to courts taking the
“peek” it authorized into record documents. Id. at 2256. The opinion included three examples of
situations where such documents could help answer the divisibility question. The first two
examples described circumstances demonstrating conclusively that a statute is indivisible. In
contrast, the third example outlined a scenario indicating that a statute could be divisible: “[A]n
indictment and jury instructions could indicate, by referencing one alternative term to the
exclusion of all others, that the statute contains a list of elements, each one of which goes toward
a separate crime.” Id. at 2257.
This third example is quite different from the first two—both of which employed
deductive methods to determine that a statute was indivisible—because it relies on reasoning by
induction. Just because the indictment in one case lists a particular statutory term to the
exclusion of others does not necessarily mean that term is an element. If any jury in the state
validly could convict a defendant without deciding among multiple statutory terms, then those
terms are means, not elements. By the same token, a prosecutor’s decision to include only one of
those terms in a given indictment does not necessarily mean that term is an element. Indeed,
Mathis instructed us on the relative strength of the conclusions to be drawn from its three
examples. Where the first two examples provided “as clear an indication as any” that a statute
was indivisible, the third example “could indicate” that a statute is divisible. Id. (emphasis
added).
What’s more, the meager record we have in this case would render this third example
even more equivocal if we found it applied here. Mathis’s third example concerns “an
indictment and jury instructions.” Id. (emphasis added). The inclusion of jury instructions is
44
Case: 14-12113 Date Filed: 11/23/2016 Page: 45 of 73
in Mr. Gundy’s indictments—the only record documents we have available—is
itself too ambiguous to “satisfy Taylor’s demand for certainty when determining
whether a defendant was convicted of a generic offense.” Id. at 2257 (internal
quotation marks omitted).
Mr. Gundy’s burglary indictments charge him with burglarizing either a
“dwelling house” or a “business house.” The two indictments charging Mr. Gundy
with burglarizing a “dwelling house” cohere with the majority’s hypothesis that
“dwelling house” is one of several alternative locational elements in the statute,
meaning that the statute is divisible among the types of locations that can be
burglarized. The term “dwelling house” does, after all, appear in the list of
alternative locations in the statute. See O.C.G.A. § 16-7-1(a) (2011).
But the other indictments charging Mr. Gundy with burglarizing a “business
house” seem to contradict the majority’s hypothesis. Nowhere does § 16-7-1
reference a “business house.” See id. We can probably safely assume that these
significant because they must always include the crime’s elements, that is, “what the jury must
find beyond a reasonable doubt to convict the defendant.” Id. at 2248. Here, because Mr. Gundy
pled guilty to each of his prior burglary offenses, “the closest analogs to jury instructions would
be . . . the statement of factual basis for the charge, shown by a transcript of plea colloquy or by
written plea agreement presented to the court, or by a record of comparable findings of fact
adopted by the defendant upon entering the plea.” United States v. Shepard, 544 U.S. 13, 20
(2005). Unfortunately, though, the only records we have of Mr. Gundy’s guilty pleas are his
signatures on the various indictments charging him. The record before us includes neither jury
instructions nor plea colloquies. Mathis in no way suggests that indictments alone could be
enough to indicate with sufficient “certainty” to satisfy Taylor that the statute is divisible.
Mathis, 136 S. Ct. at 2257 (internal quotation marks omitted). In my view, one person’s
indictments, standing alone, are simply too inconclusive to prove a statute divisible.
45
Case: 14-12113 Date Filed: 11/23/2016 Page: 46 of 73
business houses were buildings, but because “business house” appears nowhere in
the text of the statute, that the burglary occurs in a business house cannot be an
element of the crime. 10 And if some of Mr. Gundy’s indictments did not charge
the location of the burglary as an element, why should we assume that the others—
referencing “dwelling house[s]”—did? We cannot make this unfounded
assumption. Thus, even taking Mathis’s “peek at the record,” Mr. Gundy’s
indictments point in opposite directions and therefore fail to answer the question
whether the types of locations listed in Georgia’s burglary statute are elements or
means.
Mathis instructs courts what to do when state law and the records of a
conviction are inconclusive regarding a statute’s divisibility. When these sources
do not “speak plainly,” courts “will not be able to satisfy Taylor’s demand for
certainty when determining whether a defendant was convicted of a generic
offense.” Mathis, 136 S. Ct. at 2257 (internal quotation marks omitted); see also
Maj. Op. at 14 (recognizing this limitation). In my view, state law does speak
plainly in this case, and as a result, I would hold Georgia’s burglary statute to be
10
Georgia law confirms the general proposition that the elements of a crime are derived
from the text of the statute creating that crime. The state’s criminal code provides that “[n]o
conduct constitutes a crime unless it is described as a crime in [the code] or in another statute of
this state.” O.C.G.A. § 16-1-4. The code further provides that one of its “general purposes” is
“[t]o define that which constitutes each crime. . . .” Id. § 16-1-2(3). Taken together, these
portions of the code mean that all Georgia crimes are statutory and that the criminal code itself
defines each crime. Because the term “business house” does not appear in the text of Georgia’s
burglary statute, it cannot be part of that crime’s definition, so it cannot be an element. See id.
§ 16-7-1(a).
46
Case: 14-12113 Date Filed: 11/23/2016 Page: 47 of 73
indivisible. But even rejecting clear Georgia case law, the majority acknowledges
that perhaps Georgia law is at least ambiguous. See Maj. Op. at 27. It then argues
that the terms “dwelling house” and “business house” in Mr. Gundy’s indictments
satisfy Taylor’s demand for certainty that his convictions were for generic
burglary. Maj. Op. at 27. This conclusion misconceives the appropriate inquiry
under Mathis at this stage of the analysis: whether the indictments demonstrate
that Georgia’s burglary statute lists elements not means. 136 S. Ct. at 2256–57.
The majority should acknowledge that the two terms found in Mr. Gundy’s
indictments—one of which cannot be found in the text of the statute and therefore
cannot be an element—provide insufficient clarity to conclude that Georgia’s
burglary statute is divisible.
II. CONCLUSION
Today, contrary to state case law by which we are bound, the majority
declares Georgia’s burglary statute divisible and therefore capable of qualifying as
a violent felony under ACCA. Not only is the decision the majority makes today
wrong in Mr. Gundy’s case, but it likely will also substantially increase the prison
terms of scores of future defendants. In recent years, around 700 defendants each
year have been convicted in this Circuit of being a felon in possession of a
47
Case: 14-12113 Date Filed: 11/23/2016 Page: 48 of 73
firearm. 11 Such a conviction ordinarily carries “a 10-year maximum penalty.” See
id. at 2248. But ACCA imposes a 15-year mandatory minimum sentence where a
defendant has been convicted of three violent felonies, including generic burglary.
See id. In the 32 years that the version of Georgia’s burglary statute we interpret
today was in effect, tens of thousands of defendants were imprisoned for
committing burglary in Georgia.12 In fact, burglary is the most common crime for
which people are imprisoned in Georgia. 13 These numbers, when considered
together, mean that thousands of defendants stand to have their sentences increased
by at least five years each based on the majority’s decision today. This ruling,
which I believe is contrary to Georgia law, will have a monumental impact and, in
my view, result in the unlawful incarceration of scores of inmates. I would hold
Georgia’s burglary statute indivisible, vacate Mr. Gundy’s sentence, and remand
for resentencing without an ACCA enhancement. I respectfully dissent.
11
From 2011 through 2015, 3,398 defendants in the Eleventh Circuit were convicted of
being a felon in possession of a firearm. See U.S. Sentencing Comm’n, Number of Offenders
Convicted of Felon in Possession, 11th Circuit, Fiscal Years 1996 through 2015 (generated Oct.
24, 2016) (on file with the Clerk).
12
From 2005 through 2011, 17,077 defendants were imprisoned for burglary, an average
of over 2,400 a year. See Ga. Dept’t of Corrections, Inmate Statistical Profile, Inmates Admitted
During CYs 2005–2011, available at http://www.dcor.state.ga.us/Research/Annual_CY_profile_
inmate_admissions [https://perma.cc/6L8R-UPH4].
13
Burglary was the most common crime for which people were imprisoned every year
between 2005 and 2011 except 2006 and 2007. See id.
48
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Appendix
Case: 14-12113 Date Filed: 11/23/2016 Page: 50 of 73
ACCUSA.T ION NO. OOCJ 2 '7
WASHINGTON SUPERIOR COURT, DECZ1'ZR TERM, 2000
STATE OF GEORGIA
Charge: BurgJ.ary
NATHAN EDWIRD GUNDY
ACCUSATION
Filed in office, this _____ day of Th11-L , 2OL.
• &M(AJ
SUPERIOR COURT
The defendant, NAI'H.N EDWARD GUNDY, waives being formally
arraigred, waives copy of accusation, and p1eds r)iI
This _____ day of Ji-cL_ , 20 J. 7
DEFENDANT (::1
i
DEFENDANT' S A"TOPEY
7f/t1'
/ /)í'ñ/
DISTRId' ATTORNE?
WITNESSES FOR TRE ST7tT:
Erad enn8dy, .3PD
...avid Erni: J!aty
a 'I
t1: ' :':.
__ .•,• ,.' • jL
Al •! -
I.
I _7 ,
Wi'i' C.c_Y/ USAO-000 17
Case: 14-12113 Date Filed: 11/23/2016 Page: 51 of 73
ZN THE StPERIOR COURT OF WASHINGO CQt3lfl'Y
STATE OF GEORGIA
ETATE OF GEORGIA *
* Accuzation Wo. OO-f2.i
* Dece-Inber erin, 2000
v. *
*
*
NATHJ..N EDWARD GtJNDY * Eu.rglary
ACCUSATION
On behalf of the people of the State of Georg
ia, the
undersigned District Attorney or duly appointed ssista
nt District:
Attorney for the Middle Judicial Circuit of Gecrgia,
as prosecuting
attorney for the county and state aforesaid, •3es hereby
charge and
accuse NATHAN EDWARD Gt7ND'( with the offense of EtTRGt
ARY (O.C.G.A.
16-7-1); for that the said accused on tYUly 12, 2000, in
the
county aforesaid, did then and there unlawfull.', without autho
rity,
and with the intent to c•nit a theft therein, enter the busin
house of another, to wit: David Bernice :-artiey d/b/a E-Z ess
Coin
Laundry, located at East NcCartv Street, Sandersville, Georg
ia,
contrary to the laws of the state of Georgia, the good
order,
peace, and dignity thereof.
- /7
This __________ dcv of ____________
____
Assistant bistrict Attorney
Office of the District Attorney
?ost Office Drawer J
Swainsboro, Georcia 30401
p178) 237-Th46
USO -000 174
Case: 14-12113 Date Filed: 11/23/2016 Page: 52 of 73
CONSENT DO FILING OF ACCUSATION',
WAIVER OF GtAND JURY INI)ICThENT,
WAIVER OF TORY TRThL, PLEA OF GUILTY
The accused having been bound over t the superior court of
said county or being confined in jail erding coimiitment trial or
being in jail, having waived commitment trial, does hereby
expressly waive indictment by grand jury in accordan:e with the
appropriate Drovisjons of law; and
The aforenared accused expressly consents to the filing of the
foregoing accusation by the istrict Attorney; and
The afcrened accused expressly consents that the judge of
said superior court may open the court at this tiic without the
presence of either grand jury or traverse jury to receive and act
upon the plea of the aforenamed accused; and
The aforenamed accused expressly waives trial by jury arid
consents to trial by the judge alone without the intervention of a
jury upon the foregoing accusation by the District Attorney; and
The aforenaxnc-d accused acknowledges that, before any action
herein indicated, the accused has been fully advised as to a.l of
his rights in connection with all of the rat:rs here concerted,
and all of the actiori herein taken by him has been taken by him
with full knowledge of all such legal rights; and
The aforenamed accused acknowledges that, prior to any of the
actions taken by the accused in this matter, the accused has been
fully advised as to his rights to the services of an attorney at
law in all stages of the proceeding against the accused; and
accused has been advised that in the event he is unable to employ
an attorr.ey the court will aPPoint an attortey to represent the
accused; and the accused acknowledges that the court in this
instance expressly offered to appoint an attorney to advise and
reDresent the accused.
Upon the foregoing accusation, including each arid every charge
and count therein contained, the aforenarra. accused waives formal
arraigruient, waives copy and list cf witnesses, and pleads guilty.
Thiz _______ day o ________________________. 20
.4-,-
- jJJ.j-
'i _______________
ccused
1r
/
/' ,
, V
1 I
/ 1
' --!
- --' //'
1
USAO-0001 75
0
Case: 14-12113 Date Filed: 11/23/2016 Page: 53 of 73
r
IN THE SUPERIOR COURT OF COUNTY
____________________
GEORGIA
STATE OF GEORGIA C:.E.L ACTION !O. CR
OF:SEs) -
vs.
// ;1
p' jf LbJ At a I'Z )dI
TER1,
NANT
;çî LF) '('f//I
FINAL DISPOSITTc::
C C DT D?ITIO:
/ 0 lN-tj
34TEOPIATED CtijLTf C NOLL POQJ OoR
C-UILri OW COT3NT(S) _________
o NOLO CONTEtITDE E CT TJ LTY OW 0 D!AD DOCKET ORDIP 0W
CCL'NT3} ____________________ _______________________ LNT() _______________
J TO .EsER £NCLUDED tIL! CF ItCLUEED
OES) O________________
C c)T.I:T {
___________________________
ON COtWr(S} -
-i-jj Z-'
iEREAS, th above-named deferdazt has been foucz :uicy o: thc above-statEd
offense(s) , it is hereby ORDERED X.ND ADJUDGED bt c'e CCUrC chat the said
defndan is hereby sente:ced to coirer.t or a period of
- c r -P , r
)Lv_ )-Ia-i
n the State Penal ocher ins:ictiC:.. s the Comrn,ssoner of
the St.te eartrrent of Cor o:cns or the C::: ra; direct, to be corncitd
as provided by law.
DEJifl - _// -
ATI'OR!TEY LLW. C_____ 7r_.-/ CO(JNY .:-:i:-qv (A?OThTM1fl.
1t
IS SO ORDERED, :h: /
1r
/
Offi:e
___ 2 _____
V L-'7tji' 1icEdi /iu.: -::. :x;u2.: of
:1!- u:e:::
USAO-OCU17
Case: 14-12113 Date Filed: 11/23/2016 Page: 54 of 73
ACCUSATION NO. OC,Zi
WASHINGTON SUPERIOR C0URT, DECBEB TERN
, 2000
STATE OP GEORGIA
vs. Charge: Burglary
NATB.AN EDWARD GUNDY
ACCUSAT IOM
Filed in office, this day of
_____
_______________
__ 2QL.
(?it4
CL-R!L SUPERIOR COURT
The defendant, NATH2.N EDWARD GUNDY, iaives
beir
arraig-ned, waives copy 9€ accusation, and p1ads 62i/h formally
This j .
day of , 20 0! 1
(IjAfCLJ
DEFEIDANT
,j
)i)
DEFENDANT S ATTNE
DISTR±CT ATTNY
WITNESSES FOR THE STATE:
ra3 SPE
Dvi•. r':c
ErtcT?
ti-, _.--- :: _L;
---- r"
USJL)-O00 77
Case: 14-12113 Date Filed: 11/23/2016 a
Page: 55 of 73
IN TEE SUPERIOR COURT OF WA5iIN
GTO1 COtThY
STATE OF GEORGtA
STATE OF GEORGIA *
* Accusation No. OOC2
* Decanther Term, 2000
vs - *
*
*
NATH.AM EDWARD GUHDY * Burglary
ACCUSATION
On behalf of the eople
of the State of Georgia,
undersigned District Attorney the
or duly apoinced Assistant Dis
Attorney for the Middle Judici trict
al Circuit of Georgia, as prosec
attorney for the county and sta uting
te aforesaid, does hereby cbarge
accuse MATfl EDWA?D GtYNDY ,ith the offense and.
§ 16-7-1); for that the said of BURGLARY (O.C.G.A.
accused on August 23, 2000,
county aforesaid, dId then and in the
there unlawfully, without author
and with the intent to cormit ity1
a theft therein, enter the bus
house of another, to wjt Dav ine ss
id Bernice Hartley d/b/a S-Z
Laundry, located at Sast i.c Coi n
Carty Street, Sandersvi1l, Geo
contrary to the laws of the rgi a,
state of Georgia, the good
peace, and dignity thereof. order,
This _________
dcv o
20 _1/
__
_________
_________
__,
/,6f
Ass.stanc D?strct kttorney
Office of the District Attorney
Post Office Drawer J
Swainshoro, Georgia 30401
(478) 237-7846
CC'017
Case: 14-12113 Date Filed: 11/23/2016 0
Page: 56 of 73
CONSEN'I L'O FILING OF ACCØSATION,
WAIVER DP' GRAND JURY INDICNT,
WAIVER OP JtJRY TRIAL, PLEA OP GUILTY
The accused having been bound over to
the superior court of
said county or being c fined in
jail er.ding coninitinant trial or
being in jail, having waiied comznit
rnent trial, does hereby
expressly waive indictment by grand jury
in accordance with the
appropriate rovisior.s of law; and
The aforenainad accused expressly consents
to the filing of the
foregoing accusation by the District Atto
rney; and
The aforenaried accused expressly cons
ents that the judge of
said superior court may open the cour
t at this time without the
presence of either grand jury or traverse
jury to receive d act
uoon the ilea of the aforenamed accused;
and
The aforenained accused expressly waives tria
consents to trial by the judge alone without l by jury and
the in:ervention of a
jury upon the foregoing accusation by the Dist
rict Attorney; and
The aforena.med accused acknowledges that,
before any action
herein indicated, the accused has been full
y advised as to all of
his rights in connection with all of the matt
ers here concerned
arid all of the action herein taken by him
has been taken by him
with full knowledge of all such legal rights;
and
The aforenamed accused acknowledges hac,
prior t any of the
actions taken by the accused in this matt
er, the accused has been
fully advised as to his rights to the serv
ices of an attorney at
law in all stages of the P:c.ceeding
against the accused; and
accused has been advised that in the even
t he is unable to employ
an attorney the cour: will apcoint an
attornc-y to represent the
accused; and the accused acknowle
dges that the court in this
instance expressly offered to appoint
an ac:crney to advise and
represent the accsd.
Upon the ±oregong accusation, includina
each and every charge
and count therein contained, the aforenee
d accused waives fornal
arraigriient, waives cony and
list of wi:nsses, and pleads guilty.
This _______
day of _________________________, 20_0/
-
Accused
'
7/', j?',i- -2
p.-
/ / //'
-:•' -
USAO-1itJ 79
Case: 14-12113 Date Filed: 11/23/2016 Page: 57 of 73
IN THE SUPERIOR COiJ?T OF __________________ COUNTY, GEORGIA
STATE OF GEORGIA C?IMINAL ACTION tO. QCR
OFFENSE(S) _________________________
V3.
/VL. '/J 2.#4/
0 y j '?ff f7 FEIDANT -
FINAL DISPOSITION
OrEER DISPOSITIC
DyEGOT IATD J !OLE ROSEQU OPDER ON
cUiiry ON COUTS) _________ COLT ______________________ COUNT(S) _______________
0 NOt0 CCNTENDERE O- NO? GUILTY ON U D!D OCXET ORDER ON
DUNT S) ___________________ :OJNrS) _____________________ ______________
0 TO LESSER INCLUDED F INCLUDED
OFFENSE(S) ___________________ OFFE (1 OF ___________
N CNT(5) __________________
O COUNT(S) _________________
WHEREAS, the above-arnd dferant has been found cuilty of the above-stated
offensa(s) , i is herez ORDER AND JUflGED v the Ccr ha che said
defndanz is h.rby ntnced, to con ie for a eriod of
-y Cr) Cv,ett j.,4 J/t.'c
-t-Lt' ic- e-.t ..e,-id
in th State ?na1 yst or su ohr ins::::ca t: ComrnissiDr.er of
the State epartnent cf C rcions or the Ccur: y direct, to be computed
as orovde by law.
ThE DEDANT 'S RE?RESENT E -I
ATTOPJEY AT LAW OF_____________________ COUNTY,
(_/
;R;:.:.
1/ £J4 c.
s•!: (?.PpOflT1EWt.
-i-I--
IT IS SO ODERED chi _____
Filed I:'. Cf±ce Thi.
7)
.2?.
USAO-000 180
Case: 14-12113 Date Filed: 11/23/2016 D
Page: 58 of 73
ACCUSATION NO. OOc-QI9
WASHINGTON SDPERIOR COURT, DEC
EMBER TERM, 2000
STATE OF GEORGIA
v. Charge: Burglary Cl
NATFL7LN EDWARD GUNDY
ACCUSATION
Filed in office, chis 1' day o YY1aJ 0.QL.
u, 9/. (!i
CLP, SUPERIOR COURT
The defendant, NATHAN EDWARD
GtINDY, waives bei.ng formal1y
arraigned, waives coov of acc
J7L - usa tio n, and peads //
This day of /rCL-
, 20 Q,L.
&&J^T
DEFENDANT L-)
WITNESSES FOR TE STATE:
Brad Kenned-i, 5D
Michael Joel ' 'hran, EFC
111 24urpLriv
?irby Hal!
'1
rr r-r
£ r :. rnpv
;..-:. ---- -- -
- - -• -r r
Case: 14-12113 Date Filed: 11/23/2016 Page: 59 of 73
Z LIJOO-OVEfl
Case: 14-12113 Date Filed: 11/23/2016 0
Page: 60 of 73
CONSENT TO FILING O ACCU2ATIOfl,
WAIVER OF GRAND ITDRY flDICTT,
WAIVER OF tYRY TRI, PLEA OF GUILTI
The accused having been bound over to he superior court
said county or being confined in jail pending corthcinen of
t trial or
being in jail, having waived coinmitmet trial, does
hereby
expressly waive indictm.nt by grand jury in accordance
appropriate provisions of law; and with the
The aforenamed accused exnresslv consents to the filing
foregoing accusation by the District Attorney; of the
and
The aforenamed accused expressly consents that the judge
said superior court may onen the court at this tine of
without the
presence of either grand jury or traverse jury to recei
ve and act
upon the plea of the aforenamed accused; and
The aforenained accused expressly waives trial by jury
consents to trial by the judge alone without the inter and
vention of a
jury upon the foregoing accusation by the District Attor
ney; and
The aforenarned accused acknowledges thatr before any
action
herein indicated, the accused has been fuly. advised as
to all of
his rights in connection with all of the matters here
concerned,
and all of the action herein taken by hin has been taken
with full knowledge of all such legal :ights; and by him
The aforenarned accused acknowledges that, orior to any
of the
actions taken by the accused in this matter, the accus
ed has been
fully advised as to his rights to the se.rices of an
attorney at
law in all stages of the proceeding against the accu
sed; and
accused has been advised that in the event he is unable
to employ
an attorney the court will aoooint an attorney to repre
accused; and the accused acknowledges that sent the
the court in this
instance expressly offered t appoint an attorney to
advise and
reoresent the accsei.
Upon the foregoing accusation, including each and every
charge
and count therein cnr.ained. the aforenamed accused waive
arraigmrnent, weivs s forma l
v ard list of witnesses, and pleads guilty.
This _______ nay of _______________
____________, 20
c cused 7)
-
'7
p' A
- r, :ccs
,'
_/
Distrir :-'-:ne
USAO-000 183
Case: 14-12113 Date Filed: 11/23/2016 0
Page: 61 of 73
IN THE SUPERIOR COURT OF __________________ COUNTY, GEORGIA
STATE OF GEORGIA CRIMINAL ACTIO'I O. o c. /
OFFEQS(S) ______________________
vs.
A4 /' E I , , - TERM,
DEFEflDANT
gf/7 2. jf'
FINAL DISPOSITION
o •E?.O!CT: 0 OTR DS?O5IT:QN
o -'t / 0 i.JtJy
C-UXLTY ON 0 OLLI ?R0SEt7i •DPJER
:V1JtLTy o
COUNT(S) _________ COUNT(S) - COJNT(S) ______________
O NOLO CO ZNDE C 0 NOT GUILY ON 0 D!A DCT ORDEP. ON
COtET (S) ___________________ ___________________ COtTS) _____________
O TO LESSER tNCLtJ!f3 0 GUILT OF I!CLUDED
FENsE(S) __________________ E(5} o__________________
CW 2OJ(S)
O COUNT(S) _______________
--
tj rL.v1 Y-Z.LJ Ni'4i_.
WHEREAS, the above-naaed defendant been found gi1ty of the above-stated
of fense(), it is hereby OP-DERED D IJUDGED by the Court that che said
defndant is hereby sentenced1 to confin.een for a Deriod of
Cr) (4r'C ,t- re/ec
- C--J T*- .c
in the State Penal Sy ouch ocher in icuion as the Conrnissioner of
th State Deoartrnent of Corrections or the Cotirt y direct, to be computed
as orovided by law.
TE DEFEND14T R!P SNTE CCA3LE c-.ii (A?OTMNT1.
ATTO?.NEY .T LAW, Q? _ ? ,.I CO(NT1, C-SCA
/ -1-
T IS SO ORDERED, this I day of _____
7
Filed In Office This
I- Day of 2-4_L'
Jt!d, Sejcr C.urc of LL3 County
i tidd1e Jd..a1 Circui: of
Cr:-z uperior Ccu:: 7
USAO-000i 4
Case: 14-12113 Date Filed: 11/23/2016 Page: 62 of 73
ACCUSTXON NO.
WAINGTON SUPERIOR COURT, DECE}ER TERN, 2000
STATE OF GEORGIA
vs. Charges: 8urglaty (Two Counts)
NATEAN EDWARD GUNDY
ACCUSATION
Filed in office, this ji_ day of iaa_Ji , 20L.
c2i.
CLRd. SUFERIOR COURT
The defendant, AThAU EDWAPD GUND, waives beinc formally
arraigied, waives cofly of accusation, and Dicads _______
This day of _______________, 20 L.
/Lftfr4 a
DFFENflNT __)
DISTRICT ATTO?.1Ey
ITNSSES FOR THE STATE:
rd s
!rk A. 3ac, S?
Cavid rr.i :-
auli -s::
çuncoi :r:s
Rashaci :s
Lur '
-
Case: 14-12113 Date Filed: 11/23/2016 Page: 63 of 73
IN TEE SU?E.IOR COURT OF WASRI1GTON COUNTY
STATE OF GEORGIA
STATE OF GEORGIA *
* Accusation No. QczQ..t3I
* December Term, 2000
vs. *
*
*
NATEAN EDWARD GUNDY * urg1ary (Two Counts)
ACCUSAT I ON
Count 1: On behalf of the people of the State of Georgi
a, the
undersigned District Attorney or duly appointed Assistant
District
Attorney for the Niddle Judicial Circuit of Georgia, as prosec
uting
attorney for the county and state aforesaid, does hereby charge
accuse kTRAN EDARD GUDY with the offense f BURGL.A.RY and
(O.C.G.A.
16-7-1).; for that the said accused on December 12, 2000,
in the
county aforesaid, dLd then and there unlawfully, without autho
and with the intent to corrrnit a theft therein, enter the businrity,
ess
house of another, to wit: David ernice :azoley d!b/a. E-Z
Coin
Laundry, located at East McCarty Street, Sanderevilla, Georg
ia,
contrary to the laws of the state of Georgia, the good
order,
peace, and dignity thereof.
count 2: The undersigned, as orosecuting attorney
for the
county and state aforesaid, does further charge and
NTRAN EDWARD GUNDY with the offense of BtJRLARY accu se
(O.CG.A. § 16-7-
1); for that the said accused on December 14, 2000, in the
county
aforesaid, dId then and there unlawfully, witho
ut authority, and
with the intent to commit a theft therein, enter the business
house
of another, to wit: David Earnice Hartley dib(a E-Z Coin L.aun
dry,
located at East Mccarty Street, Sandereville, Georgia, contra
the laws of the state of Georgia, the good order ry to
dignity thereof. , peace , and
/
This / - day of _______________
_______,
/ / ,w'-
//6"
ssomi::t tr:ev
Oifi:e of t:: t:i:t A-ev
?csc Off:ce Drr J
Swansb,rc, Gc;j.
(47 237-7.4E
LrSAO-COO O
0
Case: 14-12113 Date Filed: 11/23/2016 Page: 64 of 73
L
CONSN'I' TO FILING OF ACCUSATION,
WAIVER OF GRAND RY INDICTN'1',
WAI1TR OF JURY TRIAL, PLPJs. O GJItJTY
The accused having been bound over to ce suDe
said county or being confined in jail pending cortn rior court of
itment trial or
being in jail, having waived commitnent trial
, does hereby
expressly waive indictment by grand jury in cccrd
ance t,qj the
appropriate provisions of law; and
The aforenarned accused ecpressly consents to the filin
foregoing accusation by the District Attorney; and g of the
The aforenamed accused expressly consents that the
judge of
said suDerior court may ooen the court at this time
without the
presence of either grand jury or traverse jiry to
receive and act
upon the plea of the aforenamed accused; arid
The aforenamed accused expressly waives trial by
consents to trial by the judge alone without the inter jury and
jury upon the foregoing accusation by the District venti on of a
Attorney; and
The aforenamed accused ackrowledges that, before
any action
herein indicated, the accused has been fully advis
ed as to all of
his rights in connection with all o the matters here
concerned,
and all of the action herein taken by him has been
taken by him
with full knowledge of all such legal rights; arid
The aforer.aned accused acknowledges that, prior to
actions taken by the accused in this matter, the accus any of the
ed has bean
fully advised as to his rights to the serv,ces of
an attorney at
law in all stages of the proceeding against the
accused; and
accused has been advised that in the event he is unabl
e to employ
an attorney the court will aPpoint an attorney to
represent the
accused; and the accused acknowledges thc
the court in this
instance exoresslv offered t appoint an
attorney to advise and
represent the accused.
Upon the foregoing accusation, including each and every
and count therein contained, the aforenamed accused charge
arra waive s formal
rent, waives cov.r nc list of 'icnesses, and pleads
guilty.
This _______ day of
20
_1txt. ;4 -
Accused
(1
)
;tcorn-, fc.r J.ccuse-
I. .•
, ,,
$ /,
_..7 ----
i.tri:
Case: 14-12113 Date Filed: 11/23/2016 0
Page: 65 of 73
IN THE SUPERIOR COURT OF __________________ COUNTY, GEORGIA
STATE 0? GEORGIA CIT4INAL ACTION O. 00 CRI3
CFFENBE(Sj -// J-2 L1rJ.,7
vs.
IJL44 Jijfr,d __________________TERM, O$
7)(/'J DEFENDANT
C74
FINAL DISPOSITION
0 a DT3EF. DIS?OITIC•N
a /a NCN-JTJ
cr'NEGOTIATED a C NOL1LE PROSEQIJI OROE ON
GUILTY 014 COUNT(S) C0tJNT( _____________________ CCUNT(S) ______________
O NOLO CON NtE ON 0 NOT c: c 0 DE.D DOc:ET OP.DR
COUNT(S) __________ CCtN(3j _____________________ CGJNTSJ ______________
o TO LZSSR INCLUDED a um CF :NcLuDE1
OFFENSE(S) __________________ O5!S) CF________________
O!ñ CCLT(S ___________________
ON CC4JNT(S) _________________
WHERE?S, the above-named defendant has been found ui1tv of the above-stated
off2nse(s), it is hereby ORDERED ?D ADJEYDGED by th Court that Lhe said
defendant is hereby sentenced to confinement for a period of
,'yr Cr _Ji ,i i J
1.t J•
ç,-i1( . -1
in the State Penal 5ystern or such other istitutica as the Commissioner of
the State DeDartment of Correctior.s r the Cur y direct, to be computed
a provided by law.
TFE DEEEiDkT W.S RPESZNTE.) Y
1
CR.LE -_' i/ _/frf/
tTTO?.NEY Ji L.34, OF 7 CUNT'. 3: {XPP0IW1EN;)
Jr p-i /
T I SO ORDERED, this / day of ____ _____________
>I1(
:-. Office T:s
j_' ___________
r:r u:.r?
uS-ong2
Case: 14-12113 Date Filed: 11/23/2016 Page: 66 of 73
INDICTENT NO. c g ,
?SRINGTON SUPERIOR COURT, DECEZR 2004
STATE OF GEQRQIA
ye. Charge: Burglary
iATHA.N E7tBD GtflDY
INDI CTMENT
7
Returned in open court by the grand jury bai1if, announced
the court, and !iled in office, this day of
_______________ 20 O-'
$2i L1/
CLER., £UERIOR CJ1J.? -
The deenden, ______________________________ waives being
forna11y araigned1 waives cooy of indicjnen, and oleads
6z..-,j This '' dy r -
20'5, /
¶'ITNESSS OR THE STATES r TI-l:t;vI )F •i GL.TY
?.EA CF u1rYs r^Y CF
'c
'C
-
4'? .-L_--A
.::i,3?2
rr.n Yr:ar -,F.) h ' ,Ii-!. k -
v .i
I / '-.<_____
usi'o-oouioi
Case: 14-12113 Date Filed: 11/23/2016 a
Page: 67 of 73
I THE SUPERIOR CODRT OF WASHINGTON COTJ1TY
STATE OF GEORGIA
INDICTMENT
NO.
The grand jurors selected, chosen, and sworn for said county,
to-;d.t:
Lewis N. West, Foreoerson Kevin S. Morris
Evelyn J. Huntley, .ASSista.flt Foreperson Geraldine S. White
Pendry W. Braswell, Clerk Judith A. ?ate
Michelle R. Clar- Sandy L. Stric)ciand
Patricia E. Rountree Leon E. Anthony 11
Robert L. Jenkins Clarence Hodges
Denise B. Dixon Sandra Martin
Brenda W. T4ilscn lizabech Lenar
DanieL G. May Benjan.in A. l1en
Mainie L. Miles Judy H. Pea
Victor Royal David Ir'zin
Daniel L. Jones
in the name and behalf of the citizens of Georgia, charge and
accuse NATE1 DWRD GTThDY with the offense f BURGLkRY (O.C.G.A.
16-7-1) for the said NATH.A EWA.RD GUNDY On
Decether 9, 2003, in the cnty aforesaid, did then and there
unlawfully, without authority, and with the intent to commit a
theft therein, a th delliz-g house o another, to wit:
Ci-tifon Jones, 1cated at 403 Grand Street, Sandrsv±lle. Georgia,
tontrary to th la.:s of the s:e of Gecria. the oo order,
eace, and r.rereof.
WASHINGTON SIJPERIOR COURT STEVE ASREW
DECE19ER TERIl, 2004 DISTRICT AT'rOR.NY
USAO.0U02ü2
Case: 14-12113 Date Filed: 11/23/2016 a
Page: 68 of 73
ONALO5PSJTI3U - sc_
THE SUPERIOR COURT OF______________ COUNTY, GEORGJ& FINAL DIPOS1T1ON
Ti.MLAcrlON NO. q-c- f
THE STATE ItFFS'JSE(S) _________ ______________
vs.
W1-t-kJ_ z, frp -uy___
om lI3C7_(I3t2 _________________TERM. 2O
LEA: C \RDiCi 0 OIlIER I)ISIOSrnON:
- 4)NEooruTEo 0 J1RY 0 GL'IL'rYDN ONOLLE PROSEQUI ORDER ON
ZUILTY ON COUNT(S) I flNONJLiRY COUNTS) ____________ COUNT(S) ______________
oNOLO CONTENDERE tN Ci '.OTG1flL1Y ON o DEAD DOCKET ORDER ON
COUNT(S) __________ COL1I(S) ___________- COLN1() ________-
- OTO LESSER RCLL;DED o GULTY Oi INCLUDED
OFFENSE(S) _____________ OFFENSE(S) OF -_______ (SEE SE1ARME ORDER)
ON COUNTIS _________
ON COUNT(S) ______
RIiiritT,i.E i:fl VrJ, ILrzi
iiIt, i1t.1II Z.t)I.
JFELONY SENTENCE 0 MtSDEME&iCR SENTEI\CE
WHEREAS, the abo-named dcIendni has hen found vhy of th: k c-statel oiTcte, W1iEP.EUPON. it is ordered and wJjuded by the
Court that: me said dcfcndan shhvsncd I .-incncrtt foT a period
in the tht/i'enaI Sy5tcrn or suth other insthution as the Coot nisskinecolthe S:n Department ci Cornaiions or Court may direct, ti
computed as pm'ridcd by law, I1OWVER, ii is ñirthcr orere hvthe Court:
I) TILAT the abore sentcnx msy be scrved on poba inn
02) THAT upon scricc or ________________________ olihe bo%c cuune. th rmndec 01 rnybc
___________________-
served on probation PROVIDED that the .aid detenant comp1s With th co:feig cn:raI 3nd other nditions herein imposed by the
Court as part of ibis sentence.
E.ERAL CONDITiONS OF PROBATION
The defend,t. having hcn iat,d the pri'.1ee of icvinaJt or part of the abac.stted Ientene on pri.tion. hereby is entend to th
following general conditions of prohtkin:
) Det nt 1Iatc ihe crimir.al b of ait tmrtceul unit.
2) Avoid injurious end v3ciou hits - epeial3y acahoIic I catiot and necc-tict ed other dengeous dus unlcst preseribed
lawfully.
j3) Avoid persons or p!acs oIdisrcpuiab!c t ianitjj1 diarsacr.
Report to the Prob ioa-Psrole Supcrisu; as dir: ed and permit suh Sepervisor IC' vitit him(h:r) at home or clsuwhere.
Worl fhlthfully at suitcbl employment insofar as may be poscib!c.
Do not charte hisiher) pccscnI place of abci. nove tttidc the jurisdiction of the Court. or Icate the State for any pcriod of lime
without prior pcrmssion oldie Proaiion Supervisor.
Support his(hcr) egal dependents to thu best of hisher) ability.
i) Prøhk,rtcr shall, from time to time upon oral or written rcqucsL y arty P;ctbacioo OhYir. prrJue a brith, uriui. and/or blood
sccimert for anahis for the prssible presence of a suhttsnce rohibhed or cAlIolied by any law of the State of Gearitia or of the
United Staics,
'5 COflIER CONDITIONS OF PRORATiON
ii iS FuRTHER ORDERED rhi the detbndwi pay a ine in tire onmunt of_______________ - pus O or 1 (, hiehcer is less puruent to
O.C.Ci.A. t5.2l-O. and pey rcstirumJon in ih; anlour.t of ____________:____________ Probation fce ______________ Court CoiLs
A1ttirnc' feeL Peyracr.ts arc: ________--
IT IS THE FLRTi-IER ORDER of the Court, and the JIfn:unt is nereby adisei that ti-c C'urt ry, .tt any time, rcvoke wiyoondidons oftHs
:obaton and!or di lmare .ir mS:f:n±i:it from prohaihr. •Fh ..... ,i:r::r sIiLdt be rri i-n armc5t fOr i.tiurt of any erntition ofpbtinn
herein granted. l(stih probation Is r: kd, the Court nay order the ectutior. oite r.men.a w1ii1m was erieinal!v impos'J
or mny portion
thzmmeufln th. m.ulflcr prr jed mw 1.w citer dcJuctn tr:-e:.'-1 th a'rur.m nI:mme rme enant has served on m-ohatjon.
The defermnt aas rcrosemicd by ti-c Forrorehi: . ttiorncv ci l.aw, P3St/47)'J Count',
b:1 ( '..(Apr;mrirtr.i t,fl- 'Pt
Uv.djC&.n (44j7 __
_r.
____- jfude Suprcr Courts
Middle .Judi iitllt OFSER\ ICE
I'it i.t mc' _errI. ir .u4 .rr;el co' f i:. S. m. i:omr:.ri i:er "- -: i to t.: neant ar. imi: m
a.in:(_ tTLi r: chose
.-_. C_-
rss,c: 1.
p r4rLje-i rr inti Cc'n-i.rIn!.
.
..- .:.ct4
- tLIVTXStV..t
'US-O- ")Ct2[13
Case: 14-12113 Date Filed: 11/23/2016 Page: 69 of 73
X TE SUPERIOR COt.T O' ___________________
STATE OF GEOP.GL
*
STATE OF GEORGIA *
*
*
vs. * Case Uo. rz-
*
pJ ?-th-V VA-i *
ADDITION GENEL CONDITION OF PROEATION
The orobainer sa11 subnit to eva!eaicns ar.d testinG
:eLating to r.habiiitaton and carticiocta in and successfully
complete rehabili:st:v. progrettiing as directed b' the deoartrnent.
Ordered at WA^H-i?JE,TM1 Ci%Wfl/ Geora, this _____
:Er1AAJ:r: , 20
udge of the Su3eri.or Courts
tidd1e Judicial Circuit
Walter C. McMifla Jr.
Chief Judge, Superior Courts
Middle Judicial Circuit
has bee- iei -arad a cc; :.. du.v inst:ucted
regarding this cnd!ticn cf pohacior r3 sane is sckiowledged by
Ur sgr.tures
-
USA O.O0O2
Case: 14-12113 Date Filed: 11/23/2016 Page: 70 of 73
ACctJSTION O. oc' 4
WASHTNGTOL'T SUPERIOR COURT, MkC TERN, 2006
STATE O GEORGIA
v. CharGe: 3urg1ay
NATRP.N EDWARD GUNDY
ACCUSATION
d 2O.
Filed in office, this 2O _______________,
(t' II
W. L-J
CL'RK' SUPERIOR COURT
The deendanc. ZATHAN EDWARD Gr.TN]DY ive beina fora1ly
., I
I7
Ui
arraigred, waives copy o accusation, nd p1ads
This 2O day f rI , 20 .
DISTRICT kT'CPY
WI'rNESSES OR T STATE:
rad Zennedy1 SFD
!:- r -' 'Op
(-p L
l ' ,'
ifw 2vl
r
SL
: Lç.
----.-- -.-.--- (1bi -'
rrr
U S Ci -0C0205
0
Case: 14-12113 Date Filed: 11/23/2016 Page: 71 of 73
IN T SUPERIOR COURT O' FTASEIGTON cou1rrY
STATE OF GEOGI
STATE O GEORGIA *
* Aceuaation No. _______
i'arch Tern, 2006
vs. *
*
*
NAT SAN EDWARD GUND Burglary
ACCUSATIOW
On behalf of the ecp1e of the State of Georgia, the
undersigned District Attorney or duly aoointed Assistant District
Attorney for the Middle Judicial Circuit of Gecrg±a, as prosecuting
attorney for the county and state aforesaid, does hereby charge and
accuse NATFi EW.D UDY with the offense of BURGLARY (O.C.G.A.
§ 16-7-1.); for that the said accused on anu&ry 8, 2006, in the
county aforesaid, did then and there unlawfully, without authority,
and with the intent to ccr-nit a theft therein, enter the dwelling
house of another, to wit: McArthur oxdan, located at
321 Tybee Street, S ervi1le, Gergie, :cntrary to the laws of
the state of Georoja, the coed order, peace, and dianity thereof,
This ___________ day of / 20 1
?.ssistant District t:orney
Office of the District Attorney
Post Office Drawer
Swainsboro, Georgia 30401
(473) 237-7846
USAO-000206
Case: 14-12113 Date Filed: 11/23/2016 Page: 72 of 73
COUSE TO FILING OF ACCUSATION,
WAIVER OF GtAND JURY INDICTMENT,
WAIVER OF JURY TRIAL, PLEA OF GUILTY
The accused having bean bound '.er to the superior court of
said county or being confjne in jail pending ccixnitment trial or
being in jail, having waived cc itmtr.t trial, dces hereby
exoressly waive indictment by grand :ury in accordance with the
apprøpriate provision. of law: and
The afcrenamed accused exprassly ccrsen:s to the filing of the
foregoing accusation by the District Attorney; and
The aforenamed accused expressly c•sents that the judge of
said superior court ay ornen the court at this time iithout the
presence of either grand jury or traverse jury to receive and act
upon the plea of the aforena'ed accused; and
The aforenamed accused expressly waives trial by jury and
consents to trial by the jude alone with the intervention of a
jury uoon the foregoing accusation by the D:strict Attorney; and
The aforcnamed accused acknowledges that, before any action
herein indicated, the accused hs bei fully advised as to all of
his rights .n connectcn with all of the 'r.atters iere concerned,
and all of the action herein taken by him has been aken by hin
with full knowledge of all such legal rights; and
The aforena,ied accused acknowledges that, prior to ar.y of the
actions taken by the accused in this matter, The accused has been
fully advised as to his rights to the sevices o: an attorney at
law in all stages of the proceeding against the accused; and
accusod has been advised that in the event he is unable to employ
an attorney the court will apoint an attorney to represent the
accused; and the accused acknowledges that the court in this
instance expressly offered o appont an attorney to advise and
represent the accused.
Jpon the foregoing accusation, incluin each and every charge
and COunt therein concaine, the aforenaed accused waives formal
arr2r_'nh, 3reS cnoy and ist i:esas, ar pleads guilty.
Tis - ' day of /Z7,-./ , 20
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USAO-000207
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Case: 14-12113 Date Filed: 11/23/2016 Page: 73 of 73
NT E?RiO COJPT OF - ____ COUNTY, GEORCIA
ST.kTE OF GDRGZA •:!cL :TT1 !D. ______
9) _______________________
vs
,AM17+ D i14i i1ALc ji/12-tr TERM, 20
DT:
FINAL DS?OSITION
0 QTh I5?CSITION
coTIATFTh 0 0 !OLL ?OSQUI O
GUILTY O) COtJT(S / c3t5rZfS ____________________ _____________
0 )OLO CO ZD!RZ O1 0 !;OT Gt3ILTY C 0 L-.) 0OCT CDZ O1
COhT1S ___________________ couis ____________________ _____________
0 TO L1S51 I:CLLDD 0 C? Z7CLLTD
CZC) o____________
O7 CU1TS) ___________________
O C&TIS) _______________
.:=: ;i!_.
BERES, th defn it hs bn fcn -1tv cf th av-stat
offnoe(s), it !s hrby ORRD 1D AJOD:-Efl b a court thac t said
deendat is hrby sennd to con imnt r a oriod of
If e-
/ !J m- U 47J / Jfr 5W7/V 7-1 9(12.4/
4v I & fc5 rfli^ 7
in th Stat Pna1 Syte or sci ot.hr inst:z:i3n as :h Cornrissioner of
Sta: patret o Corr:tions or :b Ccuz: av direct, to ccrnput
as tcwided by 1a.
?ODNT 'U P flESD TH i1'rfl!- L.ii,i-r2.S
r:ur v'. _____________________ - :'r".- 1Ti.
:'r :s ' ::i:s _______ _________________________-
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W&ter C. McMiUan Jr
Chief Judge, Supe.ror CC'irt
{dd Judicja Crcur
(JSAO-000203
United States v. Nathan E. Gundy
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2016-11-23
Citations: 842 F.3d 1156
Copy CitationsCombined Opinion