[ PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________ ________________ No. 14

- 13066

________________________ D.C. Docket No. 1:13

- cr - 20389

- KMW

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee ,

versus KELVIN ESPRIT, Defendant

- Appellant

.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ (N o vember 21, 2016) Before JORDAN and JILL PRYOR , Circuit Judges, and PROCTOR, * District Judge.

* Honorable R. David Proctor, United States District Judge for the Northern District of Alabama, sitting by designation.

Case: 14-13066 Date Filed: 11/21/2016 Page: 1 of 122 JILL PRYOR, Circuit Judge : In this direct appeal, we are tasked with deciding whether a prior conviction for burglary under Florida law may serve as a basis for an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). In light of the Supreme Court’s de cisions in Johnson v. United States , 135 S. Ct. 2551 (2015), and Mathis v. United States , 136 S. Ct. 2243 (2016), the government agrees with Kelvin Esprit , who is serving an ACCA

- enhanced sentence, that his burglary convictions cannot support such a senten ce. For the reasons that follow, we agree with Mr. Esprit as well. We therefore vacate Mr. Esprit’s sentence and remand with instructions that he be resentenced without the ACCA enhancement.
I. Factual Background Along with other offenses, a jury convicted Ke l vin Esprit of one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Although ordinarily that charge carries a maximum punishment of 10 years’ imprisonment, if an individual has three or more prior convictions for a “violent felony” or “serious drug offense,” ACCA increases his term of incarceration to a minimum of 15 years. 18 U.S.C. § 924(a)(2), (e). The district court in Mr. Esprit’s

case determined that he had four qualifying prior violent felony convictions, tw o of which were for burglary under Florida law. The court overruled Mr. Esprit’s

Case: 14-13066 Date Filed: 11/21/2016 Page: 2 of 123 objection to the imposition of an enhanced sentence based on the burglary convictions and imposed a sentence of 188 months’ imprisonment

. Mr. Esprit appealed, renewing his challenge to the use of his Florida burglary convictions to enhance his sentence. To qualify as an ACCA predicate at the time of his sentencing, his Florida burglary convictions were required to satisfy one of ACCA’s three definitions of violent felony. That is, Florida burglary must be an offense that (1) “has as an element the use, attempted use, or threatened use of physical forc e against the person of another ”; (2) “is burglary, arson, or extortion, [or] involves the use of explosives ”; or (3) “other wise involves conduct that presents a serious potential ris k of physical injury to another. ” 18 U.S.C. § 924(e)(2)(B)(i)

– (ii). These three definitions are known, respectively, as the elements clause, enumerated crimes clause, and residual clause. Under F lorida law, burglary is defined as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein

. ” Fla. Stat. § 810.02 (1) (b)(1). Another part of the statute defines “dwelling” as a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. Case: 14-13066 Date Filed: 11/21/2016 Page: 3 of 124 Id. § 810.0 11(2) ; see also id. § 810.011(1) (defining “structure” as “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof”). A conviction under this statute indisputably does not implicate the elemen ts clause, but the government previously argued in this appeal that it fell within the residual clause. In Johnson , the Supreme Court held that the residual clause was unconstitutionally vague

. 135 S. Ct. at 2563

. In response, the government conceded that Mr. Esprit’s prior burglary convictions could not qualify as predicates under ACCA’s residual clause but asserted that they nonetheless qualified as enumerated crime s . Now, in light of the Supreme Court’s decisi on in Mathis , which elaborated on the appropriate analysis for considering whether an offense qualifies as an enumerated crime, the government agrees with Mr. Esprit
that a Florida burglary conviction cannot serve as a predicate offense for his ACCA enhanc ement. And, because Mr. Esprit has only two qualifying prior violent felonies without the burglary convictions, the government concedes that he is entitled to be resentenced. We agree. 1
II. ANALYSIS

1 “Confessions of error are, of course, entitled to and given great weight, but they do not relieve this Court of the performance of the judicial function.” Sibron v. New York , 392 U.S. 40, 58 (1968) (internal quotation marks omitted).

Case: 14-13066 Date Filed: 11/21/2016 Page: 4 of 125 We review de novo whether a prior state conviction qualifi es as a “ violent felony ” under ACCA. United States v. Howard , 742 F.3d 1334, 1341 (11th Cir. 2014). We first examine the Supreme Court and Circuit precedent that drives our analysis of whether a conviction for Florida burglary falls within ACCA’s definit ion of “violent felony.” We then apply those principles to Florida’s law. A. The Evolution of Our Framework for Determining Whether a State Offense Qualifies as an Enumerated Crime Although ACCA’ s enumerated crimes include the offense of burglary, it is axiomatic by now that not all state burglary statutes qualify as burglary under
ACCA. See Mathis , 136 S. Ct. at 2248 (citing Taylor v. United States , 495 U.S. 575, 598 (1990)). Indeed, “[i]n listing those crimes, . . . Con gress referred only to their usual or (in our terminology) generic versions

— not to all variants of the offenses.” Id. “ That means as to burglary

— the offense relevant in this case

— that Congress meant a crime containing the following elements: an unlawful or unprivileged entry into a building or other structure, with intent to commit a crime.” Id. (alteration and internal quotation marks omitted). In determining whether a prior conviction (here, Florida burglary) is equivalent to generic burglary, we must “focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Id

. If the elements of the state offense are either “the same as, or narrower th an, those of the generic offense,” then the

Case: 14-13066 Date Filed: 11/21/2016 Page: 5 of 126 conviction meets ACCA’s definition. Id. This is known as the “categorical approach.” Id. For the limited purpose of “help[ing] implement the categorical approach,” the Supreme Court has also recognized a “narrow range of cases” in which courts can use what is called the “modified categorical approach.” Descamps v. United
States , 133 S. Ct. 2276, 228 3 , 2285 (2013) (internal quotation marks omitted). The modified categorical approach allows courts to revie w certain documents from the state proceedings (known as “ Shepard documents”) to find out if the state court convicted the defendant of the generic offense. See Shepard v. United States , 544
U.S. 13 (2005). Even though the modified categorical approach l ets courts look at facts for that limited purpose, it “retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements wit h the generic offense’s.” Descamps , 133 S. Ct. at 2285. “Our inquiry, in this regard, is always about what elements the defendant was convicted of, not the facts that led to that conviction.” United States v. Lockett , 810 F.3d 1262, 1266 (11th Cir. 2016 ). Nine years ago, the Supreme Court held that Florida burglary is not the enumerated crime of burglary in ACCA because Florida allows a burglary conviction even when a defendant burglarizes the curtilage of a home. See James v. United States , 550 U.S. 192, 212 (2007) (“[T]he inclusion of curtilage takes

Case: 14-13066 Date Filed: 11/21/2016 Page: 6 of 127 Florida’s underlying offense of burglary outside the definition of ‘ generic burglary ’ set forth in Taylor , which requires an unlawful entry into, or remaining in, ‘ a building or other structur e . ’ ” (internal citations omitted) ). 2 Nonetheless, j ust a few months before the Descamps decision , this C ourt held on plain

- error review that , “[a]lthough Florida’s burglary statute facially encompasses both generic and

non - generic burglaries, a conviction under the statute can still qualify as a generic burglary if the charging documents or other Shepard

- approved sources show that the offense involved unlawful entry into a building or structure.” United States v. Weeks , 711 F.3d 1255, 1262

– 63 (11th Cir. 2 013). Weeks reached this conclusion because this Court’s pre

- Descamps precedent assumed that the modified categorical approach applied to any non

- generic burglary statute. See id. ; see also Howard , 742 F.3d at 134 4 (explaining that this Court’s “pre

- Des camps decisions . . . assumed that the modified categorical approach could be applied to all non

- generic statutes”). “The Descamps decision dictates discarding that assumption.” Howard , 742 F.3d at 134 4

. After Descamps , “the modified categorical approach can be applied only when dealing with a divisible statute: a statute that ‘sets out one or more elements of the offense in the alternative.’” Id. (quoting Descamps , 133 S. Ct. at 2281

– 82 ).

2 James went on to hold that a violation of this Florida statute met ACCA’s “residual clause” definition of “violent felony.” 550 U.S. at 209. T he Supreme Court overruled that aspect of James in Johnson

. See supra Part I.

Case: 14-13066 Date Filed: 11/21/2016 Page: 7 of 128 This Court’s Lockett decisi on later clarified when and how a state statute
“sets out one or more elements of the offense in the alternative ” ; that is, whether it
is divisible. Descamps , 133 S. Ct. at 2281. Lockett explained that before applying the modified categorical approach, a sentencing court must “determine whether a state statute ‘lists multiple, alternative elements, and so effectively creates several different crimes.’” 810 F.3d at 1266 (quoting Descamps , 133 S. Ct. at 2285). “If the statute does this, then [the statute is divisible and] Shepard documents will tell us which of these ‘several different crimes’ a defendant was convicted of. If it does not, then [the statute is indivisible and] no conviction under the statute can be assumed to be generic.” Id. Lockett h eld that South Carolina’s burglary statute did not create “several different crimes” and therefore was indivisible because jurors were only required to find that a defendant entered a “dwelling.” Id. at 12 69

– 70. We recognized that the statute also define d the word “dwelling” with a finite list of places separated by the word “or.” Id. We explained that a sentencing court’s “ inquiry can ’ t end with simply looking at whether the statute is written disjunctively (with the word “or”). The text of a statute won ’ t always tell us if a statute is listing alternative means or definitions, rather than alternative elements. ” Id. at 1268. Instead, “ a jury must be required to find one of the alternative elements beyond a reasonable doubt, rather than just convict u nder a statute that happens to list alternative definitions or

Case: 14-13066 Date Filed: 11/21/2016 Page: 8 of 129 alternative means for the same crime without requiring jurors to pick which one applies .” Id. at 1267. Five months after we decided Lockett , the Supreme Court in Mathis also addressed a stat ute that “enumerates various factual means of committing a single element.” 136 S. Ct. at 2249. The Court in Mathis explained that this “ kind of list merely specifies diverse means of satisfying a single element of a single crime ” and that “ a jury need n ot find (or a defendant admit) any particular item ” in order for a burglary conviction to be valid. Id. And the Court held that the modified categorical approach does not apply “ when a statute happens to list possible alternative means of commission: Wh ether or not made explicit, they remain what they ever were

— just the facts .” Id. at 2557. In light of the Supreme Court’s decision in Mathis , the government in this case has expressed the view that the Florida burglary statute’s definition of “structure” is indivisible , and the unlawful entry into the curtilage of a building is merely a possible alternative means of commission of the offense. Thus, the government agrees with Mr. Esprit that his Florida burglary convictions cannot be used to enhance his s entence under ACCA.
B. Application of This Framework to Mr. Esprit’s Florida Burglary Convictions Mr. Esprit was convicted of violating a statute that defines burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein.” Fla. Stat. § 810.02 (1) (b)(1). Again, the statute defines

Case: 14-13066 Date Filed: 11/21/2016 Page: 9 of 1210 “dwelling” as: a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. Id. § 810.011(2). Likewise, the Florida statute defines “structu re” to include the curtilage of a building. Id. § 810.011(1). We hold that a conviction for burglary under Florida law cannot serve as a predicate “violent felony” under ACCA because the Florida burglary statute is not divisible, and that means that we c annot use the modified categorical approach

. Because Florida law defines both a dwelling and a structure as “a building

. . . together with the curtilage thereof,” we have explained that “Florida does not consider burglary of the curtilage of a structure t o be a crime distinct from burglary of that structure.” United States v. Matthews , 466 F.3d 1271, 1274 (11th Cir. 2006). 3 The Florida Supreme Court has made this same point: There is no crime denominated burglary of a curtilage; the curtilage is not a s eparate location wherein a burglary can occur. Rather, it is an integral part of the structure or dwelling that it surrounds. Entry into the curtilage is, for the purposes of the burglary statute, entry into the structure or dwelling. Baker v. State , 636 So. 2d 1342, 1344 (Fla. 1994).

3 Matthews held that a conviction for third degree burglary under Florida law qualified as a violent felony under ACCA’s residual clause. 466 F.3d at 1275. That portion of Matthews has been overruled by the Supreme Court’s decision in Johnson

. See supra Part I.

Case: 14-13066 Date Filed: 11/21/2016 Page: 10 of 1211 Baker confirms that Florida jurors never were required to decide if Mr. Esprit committed burglary by entering a building rather than just its curtilage. 4 Or , as the Florida Supreme Court put it, “for the purposes of the burglary statute, it would not matter whether [Mr. Esprit ] was in [a victim]’s secluded back yard or back bedroom; in either circumstance, the courts must consider him to have been within [a] dwelling.” Id

. For that reason, [t] he modified approach thus has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in [Fla. Stat. § 810.0 2 (1) ( b ) (1) ]. The former requires an unlawful entry [into a building or structure ]. The latter does not. Descamps , 133 S. Ct. at 2285 ( internal citation omitted)

. Florida’s burglary statute creates a single indivisible crime that includes non

- generic burglary. Th at means “no conviction under the statute can be assumed to be generic.” Lockett , 810 F.3d
at 1266. And if no conviction under Florida’s burglary statute qu alifies as generic burglary, the n no such conviction can serve as an ACCA predicate offense. Thus , as a categorical matter , a Florida burglary conviction is not a “violent felony”

4 See Lockett , 810 F.3d at 12 71 (“What elements [state] prosecutors are required to prove for a burglary conviction is a question of [state] law. And so we look to the state’s courts to answer this question.”); see also Howard , 742 F.3d at 1346 (“Sentencing courts conducting divisibi lity analysis in this circuit are bound to follow any state court decisions that define or interpret the statute’s substantive elements because state law is what the state supreme court says it is.”); United States v. Rosales

- Bruno , 676 F.3d 1017, 1021 (11 th Cir. 2012) (“[I]n determining whether a conviction

. . . under [Florida law] is a ‘crime of violence’ for sentencing enhancement purposes, we are bound by Florida courts’ determination and construction of the substantive elements of that state offense.” ).

Case: 14-13066 Date Filed: 11/21/2016 Page: 11 of 1212 under ACCA.
III. CONCLUSION Mr. Esprit’s ACCA

- enhanced sentence cannot stand in light of our holding today. Accordingly, we vacate his sentence and remand to the district court with instructions that he be resentenced without the ACCA enhancement. VACATED AND REMANDED. Case: 14-13066 Date Filed: 11/21/2016 Page: 12 of 12