UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7304
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES ALLEN HALL,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Martin K. Reidinger, District Judge. (3:09-cr-00019-MR-1; 3:13-cv-00592-
MR)
Submitted: March 31, 2017 Decided: April 7, 2017
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Ross Hall Richardson, Interim Defender, Joshua B. Carpenter, Appellate Chief, FEDERAL
PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA,
Asheville, North Carolina, for Appellant. Jill Westmoreland Rose, United States Attorney,
Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Allen Hall appeals the district court’s order denying relief on his 28 U.S.C.
§ 2255 (2012) motion. The court granted a certificate of appealability on one issue
presented in that motion: whether South Carolina third-degree burglary, S.C. Code Ann.
§ 16-11-313 (2015), and North Carolina aiding and abetting assault with a deadly weapon
on a police officer, N.C. Gen. Stat. § 14-34.2 (2015), were properly treated as violent
felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (2012) (ACCA). Under
the ACCA, a defendant who violates 18 U.S.C. § 922(g)(1) (2012) and has three or more
prior convictions of serious drug offenses or violent felonies is subject to a mandatory
minimum sentence of 15 years. 18 U.S.C. § 924(e)(1). We conclude that, because South
Carolina third-degree burglary sweeps more broadly than generic burglary, it cannot serve
as an ACCA predicate felony, and Hall accordingly was improperly sentenced as an armed
career criminal. We therefore vacate the decision of the district court and remand for
resentencing. *
I
Hall was convicted in 2009 of possession of a firearm by a convicted felon, 18
U.S.C. § 922(g)(1). He objected to his classification as an armed career criminal; however,
the district court overruled the objection and sentenced Hall to 188 months in prison. We
*
We do not address whether the North Carolina assault conviction qualifies as an
ACCA predicate.
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affirmed, rejecting Hall’s assertion that he did not have the requisite prior convictions for
ACCA status. United States v. Hall, 495 F. App’x 319, 326-28 (4th Cir. 2012).
In his § 2255 motion, Hall alleged ineffective assistance of counsel and that he was
improperly sentenced as an armed career criminal. Specifically, he claimed that neither
the South Carolina third-degree burglary conviction nor the North Carolina assault
conviction was a violent felony under the ACCA. The district court denied the motion to
vacate. With respect to Hall’s ACCA claims, the court held that both convictions qualified
as violent felonies.
This appeal followed. The only issue raised on appeal is whether Hall was properly
sentenced as an armed career criminal. The United States agrees that South Carolina
third-degree burglary is not a violent felony and that Hall is entitled to sentencing relief
under § 2255.
II
The ACCA defines a “violent felony” as a felony that:
(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another. . . .
18 U.S.C. § 924(e)(2)(B). Subsection (e)(2)(B)(i), which is commonly referred to as the
“force clause,” applies only to crimes that involve “violent force—that is, force that is
capable of causing physical pain or injury to another person.” United States v. Gardner,
823 F.3d 793, 803 (4th Cir. 2016) (internal quotation marks omitted). Subsection
(e)(2)(B)(ii) consists of both the “enumerated offense clause” and the “residual clause.”
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The latter clause is unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551,
2558 (2015). Johnson did not invalidate either the force clause or the enumerated offense
clause. Id. at 2563.
To decide if a prior offense is an enumerated offense, courts generally use:
the “categorical approach”: They compare the elements of the statute
forming the basis of the defendant’s conviction with the elements of the
“generic” crime—i.e., the offense as commonly understood. The prior
conviction qualifies as an ACCA predicate only if the statute’s elements are
the same as, or narrower than, those of the generic offense.
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). “The comparison of elements
that the categorical approach requires is straightforward when a statute sets out a single (or
‘indivisible’) set of elements to define a single crime.” Mathis v. United States, 136 S. Ct.
2243, 2248 (2016). If, however, a statue is “divisible,” meaning that it “list[s] elements in
the alternative, and thereby define[s] multiple crimes,” courts use the “modified categorical
approach.” Id. at 2249. “Under that approach, a sentencing court looks to a limited class
of documents . . . to determine what crime, with what elements, a defendant was convicted
of. . . . The court can then compare that crime . . . with the relevant generic offense.” Id.
Our first task is to compare South Carolina third-degree burglary with the generic
definition of burglary. “A person is guilty of burglary in the third degree if the person
enters a building without consent and with intent to commit a crime therein.” S.C. Code
Ann. § 16-11-313 (2015). “Building” is defined to include “any structure, vehicle,
watercraft, or aircraft.” S.C. Code Ann. § 16-11-310(1) (2015). Generic burglary is the
“unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” Descamps, 133 S. Ct. at 2283 (internal quotation marks omitted).
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Mathis is dispositive in this case. In Mathis, the defendant was sentenced as an
armed career criminal based on prior Iowa convictions of burglary. Mathis v. United
States, 136 S. Ct. at 2250. The burglary statutes at issue in Mathis define burglary to
include unprivileged entry into an “occupied structure.” Iowa Code Ann. §§ 713.3, 713.5
(2015) (burglary in the first degree; burglary in the second degree, respectively). An
“occupied structure,” in turn, is defined to include “any building, structure, appurtances to
buildings and structures, land, water or air vehicle, or similar place. . . .” Iowa Code Ann.
§ 702.12 (2015).
The Supreme Court observed that the locations listed in § 702.12 “are not alternative
elements, going toward the creation of separate crimes. To the contrary, they lay out
alternative ways of satisfying a single locational element.” Mathis, 136 S. Ct. at 2250.
The Iowa burglary statute therefore is not divisible because it “defines one crime, with one
set of elements, broader than generic burglary.” Id. Because “the elements of Mathis’s
crime of conviction (Iowa burglary) cover a greater swath of conduct than the elements of
the relevant ACCA offense (generic burglary), that . . . disparity resolve[d the] case.” Id.
at 2251. The Court held that Mathis’s burglary convictions could not serve as ACCA
predicates. Id.
Under Mathis, Hall’s conviction of third-degree burglary cannot serve as a predicate
felony under the ACCA. As with the Iowa statute, the South Carolina statute covers
unlawful entry into not only buildings but also vehicles, watercraft, and aircraft. The South
Carolina statute, like the Iowa statute, is not divisible because these are not alternative
elements of the offense; instead, they are alternative means of satisfying the locational
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element of third-degree burglary. Application of the categorical approach compels the
conclusion that the South Carolina statute sweeps more broadly than generic burglary and
cannot serve as a predicate ACCA felony.
III
We hold that Hall did not have the requisite three prior felonies to qualify as an
armed career criminal. Accordingly, we vacate the district court’s order and remand for
resentencing. The motion to expedite is denied as moot. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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