United States Court of Appeals

For the Eighth Circuit

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No. 19-1082

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Stanley William Silva

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Western District of Missouri - Springfield

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 Submitted: November 12, 2019

Filed: December 13, 2019

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Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. 

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KOBES, Circuit Judge.

Stanley William Silva pleaded guilty to possession of a firearm as a convicted

felon in violation of 18 U.S.C. § 922(g)(1). The district court1

found he was a career

1

 The Honorable Roseann A. Ketchmark, United States District Judge for

the Western District of Missouri.
offender under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because he had

two state convictions for serious drug offenses and a state burglary conviction that

was a violent felony. He was sentenced to 15 years in prison (the minimum sentence

for a career offender) followed by five years of supervised release. He appeals,

challenging the district court’s finding that his burglary conviction was under Miss.

Code § 97-17-23 and therefore an ACCA predicate offense. We affirm.

A “violent felony” under the ACCA includes any state or federal felony that

“is burglary, arson, or extortion.” 18 U.S.C. § 924(e)(2)(B)(ii). To decide whether

a state conviction qualifies as generic burglary, courts apply the categorical approach,

looking “only to the fact of conviction and the statutory definition of the prior

offense.” United States v. Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016). However,

before applying the categorical approach, the district court must determine the statute

of conviction. See United States v. Twiggs, 678 F.3d 671, 674 (8th Cir. 2012). This

is a factual finding that we review for clear error. Id.

There are two possible statutes of conviction for Silva’s burglary offense

(called “Burglary & Larceny” on the judgment and the “notice of criminal

disposition” reviewed by the district court).2 One, Miss. Code § 97-17-23, defines

burglary as “breaking and entering the dwelling house or inner door of such dwelling

house of another . . . with intent to commit some crime therein,” and can result in up

to 25 years in prison. The other, Miss. Code § 97-17-33(1), defines burglary as the

breaking and entering of structures other than a dwelling house, and can be punished

by up to seven years in prison. The parties agree that § 97-17-23 describes generic

burglary while § 97-17-33(1) is overbroad and not an ACCA predicate offense. 

The district court considered three documents attesting to Silva’s conviction

to determine that he had been convicted under § 97-17-23. First, a Lee County

2

 Mississippi does not have a crime called “Burglary & Larceny.”

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Circuit Court Order, dated February 15, 2000, entering judgment against him on a

guilty plea of “Burglary & Larceny,” and “sentenc[ing him]to serve a termof twentyfive (25) years” in prison, suspending 15 years. Second, an indictment, dated October

25, 1999, to which he pleaded “guilty as charged,” charging him with “willfully,

feloniously and burglariously break[ing] and enter[ing] a certain dwelling . . . with

the felonious and burglarious intent to take, steal, and carry away [] goods, chattels

and personal property . . . .” Third, a notice of criminal disposition to the Mississippi

Department of Corrections, dated February 24, 2000, recording a single conviction

for “Burglary & Larceny.” No document references the statute of conviction. 

The district court did not commit clear error in deciding that Silva was

convicted for violating § 97-17-23. The indictment tracksthe language of thatstatute

by describing his crime as breaking into a dwelling, not one of the other structures

listed in § 97-17-33(1) and the judgment notes that he pleaded “guilty as charged” in

the indictment. Plus, his 25-year sentence is only possible under § 97-17-23. 

Although Silva has not offered any other explanation for his conviction and

sentence, he argues against “reasoning backward” in this way. Specifically, Silva

claims that determining the statute of conviction based on the sentence and language

in the indictment and plea does not comport with “‘Taylor’s demand for certainty’

when determining whether a defendant was convicted of a generic offense.” Mathis

v. United States, 136 S. Ct. 2243, 2257 (2016) (quoting Shepard v. United States, 544

U.S. 13, 21 (2005)). However, the “demand for certainty” refers to our need to be

certain, when applying the modified categorical approach, that a given conviction

represents a finding that a defendant committed the generic version of a crime. The

modified categorical approach is separate from the factual inquiry into the statutory

basis of a conviction that is at issue here. Twiggs, 678 F.3d at 676. In this context,

we affirm if the district court did not clearly err, even though records may not

establish the statute of conviction “with complete clarity.” Id. at 675. 

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The documents reviewed by the district court show that Silva broke into a

dwelling and committed the crime of larceny. That conduct is criminalized by Miss.

Code § 97-17-23. The elements of § 97-17-23 describe the generic offense of

burglary. Therefore, the district court correctly classified Silva as a career offender

and his sentence is affirmed.

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