RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0093p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

M ATTHEW G ARY R ICHARDSON , Petitioner-Appellant ,

v

.

UNITED S TATES OF A MERICA , Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 17-5517

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. Nos. 3:14-cr-00025-1; 3:16-cv-00398—Thoma s A. Varlan, Chief District Judge. Argued: March 7, 2018
Decided and Filed: May 15, 2018
Before: COLE, Chief Judge; WHITE and BUSH, Circuit Judges.

_________________ COUNSEL

ARGUED: Laura E. Davis, FEDERAL DE FENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxv ille, Tennessee, for Appellee. ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

_________________ OPINION

_________________ HELENE N. WHITE, Circuit Judge. Petitioner Matthew Richardson appeals the district court’s denial of his 28 U.S.C. § 2255 motion to set aside his sentence, challenging his 

### >No. 17-5517 Richardson v. United States Page 2

designation as an armed career criminal under 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”). We AFFIRM

.
I. BACKGROUND
In 2012, after attempting to sell a sawed- off shotgun, Richardson pleaded guilty to possessing a firearm as a felon, inviolation of 18 U.S.C. § 922( g)(1). Based on Richardson’s three prior Georgia burglary convictions, 1 each of which qualified as a predicate “violent felony” under the ACCA, the district court determined that Richardson was an armed career criminal and sentenced him to 180 months’ imprisonment. Ri chardson did not appeal his sentence, but now brings this § 2255 motion alleging that in light of Johnson v. United States , 135 S. Ct. 2551 (2015), his prior Georgia burglary convictions no longer qualify as predicate offenses under the
ACCA. The district c ourt denied the motion, 2 and this timely appeal followed.

II. THE APPLICABLE LAW
We review de novo whether Richardson’s prio r convictions qualify as predicate violent
felonies under the ACCA. United States v. Hockenberry , 730 F.3d 645, 663 (6th Cir. 2013) (citation omitted). The ACCA provides for a mandatory minimum sentence of 180 months when a felon found guilty of possessing a firearm was previously convicted of at least three prior “serious drug offense[s]” or “violent felon[ies].” 18 U.S.C. § 924(e)(1). As relevant here, the ACCA defines “violent felony” to include “burglary.” Id. § 924(e)(2)(B)(ii).
However, not every “burglary” conviction qualifies as a predi cate offense under the ACCA. As the Supreme Court explained, only “g eneric burglary”—defined as “an unlawful or unprivileged entry into, or remaining in, a buildi ng or other structure, w ith intent to commit a crime”—qualifies as a violent felony under the enumerated-crimes clause of the ACCA. Taylor
v. United States , 495 U.S. 575, 598 (1990). Thus, we must determine whether Richardson’s three prior Georgia burglary conv ictions qualify as generic burglar ies. To do so, we employ the “categorical” approach. Mathis v. United States , 136 S. Ct. 2243, 2248 (2016).

1 Richardson committed two of his burglaries in 1999 and one in 2003.
2 The district court initially refused to grant a certificate of appealability. Upon Richardson’s motion, the district court reconsidered its decision and gran ted his request for a certificate of appealability.No. 17-5517 Richardson v. United States Page 3

Under the categorical approach, we must determ ine “whether the elements of the crime of conviction sufficiently match the el ements of generic burglary.” Id. The Supreme Court has repeatedly cautioned that a cour t may look only at the elements of the statute of conviction and not at the underlying facts of the offense. Taylor , 495 U.S. at 599–602. If the statute’s elements
are the same as or narrower than the elements of the generic offense, the statutory offense qualifies as a predicate offense because the commission of the o ffense necessarily constitutes commission of the generic offense. Id . at 599.
This task “is straightforward when a statute sets out a single (or ‘indivisible’) set of elements to define a single crime.” Mathis , 136 S. Ct at 2248. However, faced with an alternatively phrased statute, courts must first de termine whether the statute lists elements in the alternative and thus creates a separate crime associated with each alternative element, or whether the statute creates only a single crime and “spells out various f actual ways,” or “means,” “of committing some component of the offense.” Id. at 2249.

As Mathis explained, “[e]lements 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 th e defendant necessarily admits when he pleads guilty.” Id. Means, on the other hand, “are mere real -world things—extraneous to the crime’s legal requirements.” Id. “They are circumstances or ev ents having no legal effect or consequence . . . [and] need neither be f ound by a jury nor admitted by a defendant.” Id. (quotation marks and alterations omitted). As we recently explained:
In determining whether statutory alternat ives constitute elements or means, [ Mathis ] clarified that sentencing courts shoul d look first to state law, including judicial interpretations of the criminal st atute by state courts. Alternatively, the statute itself may provide the answer. A statute might explicitly identify which things must be charged (and so are elements) and which need not be (and so are means). Moreover, if statutory alternat ives carry different punishments, then under Apprendi they must be elements. On the other hand, if a statutory list is drafted to offer “illustrative examples,” then it includes only a crime’s means of commission.No. 17-5517 Richardson v. United States Page 4

State law can be expected to provide a clear answer to the elements-means dilemma in many cases, but, if it does not , a sentencing court may briefly look to the record of the prior conviction. Sent encing courts encountering this situation may take a “peek” at the record docume nts for the sole and limited purpose of determining whether the listed items are elements of the offense. Indictments, jury instructions, plea colloquies and plea agreements will often reflect the crime’s elements and so can reveal whether a statutory list is of elements or means. If the charging documents reiter ate all the terms of the law, then each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt. The same is true if those documents use a single umbrella term like “premises.” On the other hand, the record could indicate that the statute contains a list of di stinct elements by referencing one alternative term to the exclusion of all others. Only if the record indicates that the listed items are el ements, not alternative means, may the sentencing courts examine the Shepard documents to determine whether the crime the defendant was convicted of constituted a generic burglary. The Court cautioned, however, that such record materials will not in every case speak plainly, and if they do not, a sentenci ng judge will not be able to satisfy Taylor ’s demand for certainty when determining wh ether a defendant was convicted of a generic offense.
United States v. Ritchey , 840 F.3d 310, 318 (6th Cir. 2016) (internal quotations, citations, quotation marks, and alterations omitted).
If an alternatively phrased st atute sets forth alternative elements of an offense, the statute is divisible and courts may proceed to apply the “modified categorical” approach to identify
which crime of the alternative crimes set forth in the statute was the basis of the defendant’s
conviction. Mathis , 136 S. Ct at 2248–49. The modified cate gorical approach permits us to look at a limited class of documents from the record of the prior conviction ( Shepard documents) to determine which crime, with what elements, th e defendant was convicted of, before comparing that crime’s elements to the generic offense. Id. ; see Shepard v. United States , 544 U.S. 13, 26 (2005) (“We hold that enquiry und er the ACCA to determine whet her a plea of guilty to burglary defined by a nongeneric statute necess arily admitted elements of the generic offense is limited to the terms of the charging document, the terms of a plea agreem ent or transcript of colloquy between judge and defendant in which the fact ual basis for the plea was confirmed by the defendant, or to some comparable judi cial record of this information.”).No. 17-5517 Richardson v. United States Page 5

Here, it is undisputed that the Georgia burglary statute at issue 3 criminalizes more conduct than the generic defini tion of burglary set forth in Taylor because it includes vehicles, railcars, watercraft, and aircraft in its list of locations covered by the statute. Thus, our first task
is to determine whether the listed locations ar e alternative elements or alternative means of fulfilling an element. If the Georgia statute includ es alternative locational elements, the statute is divisible and we must apply the modified categorical approach. If the statute contemplates alternative means of fulfilling the lo cational element, the statute is indivisible and subject only to the categorical analysis.

III. THE ELEVENTH CIRCUIT’S GUNDY DECISION

In United States v. Gundy , the Eleventh Circuit applied th e principles and tools outlined
in Mathis to the Georgia burglary statute at issue here and found the statute to be divisible. 842 F.3d 1156, 1159–70 (11th Cir. 2016).
Gundy first found that the Georgia burglary statut e is distinguishable from both the Iowa burglary statute found to be indi visible by the Supreme Court in Mathis and the Alabama burglary statute, which the Eleventh Circ uit had previously found indivisible in United States v.
Howard , 742 F.3d 1334, 1348 (11th Cir. 2014). Both the Iowa and Alabama statutes used a single term—“occupied structur e” and “building,” respectively —that was then defined in a separate statutory sec tion to include non-generic types of locations. Gundy , 842 F.3d at 1165–67 (citations omitted). In contrast, the Gundy court reasoned, “the plain te xt of the Georgia statute
has three subsets of different loca tional elements, stated in the al ternative and in the disjunctive.”
Id. at 1167. Second, the court addressed state case law and found that in Georgia “a prosecutor must select, identify, and charge the specific pl ace or location that was burgled,” “the hallmark
of a divisible statute.” Id. Third, the court relie d on a Georgia Supreme Court case stating that

3 At the time of Richardson’s burglary offenses, 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. . . . Ga. Code Ann. § 16-7-1(a) (1980).No. 17-5517 Richardson v. United States Page 6

the fact “that the [burglarized] vehicle was designed as a dwelling was an essential element of the offense .” Id. at 1168 (quoting DeFrancis v. Manning , 271 S.E.2d 209, 210 (Ga. 1980)).
Having concluded that the st atute is divisible, the Gundy court found that the state indictments, which charged the defendant in two prior cases with burglarizing a “dwelling house,” and in five cases with burglar izing a “business house,” “satisf[ied] Taylor ’s demand for certainty that Gundy’s convictions were for burglary of a building or other structure, which is generic burglary.” Id. at 1170.
Judge Jill Pryor dissented, advancing four arguments. First, she would have relied on a Georgia Court of Appeals case su ggesting that the type of locati on is not an element of Georgia burglary. Id. at 1172 (quoting Lloyd v. State , 308 S.E.2d 25, 25 (Ga. Ct. App. 1983)). Second, she looked to Georgia’s model jury instructions th at “list [] ‘building or dwelling’ as part of a single element.” Id. at 1173. Third, she cont ended that the inclusion of the phrase “other such structure designed for use as the dwelling of another” in the sec ond part of the statute’s list of locations is indeterminate and prec ludes a finding of divisibility. Id. at 1172–73. Fourth, as to the “peek” at Gundy’s records, she found them unavailing because indictments for five of Gundy’s predicate crimes used the phrase “busine ss house,” which is not found in the statute. Id.
at 1178.

The Eleventh Circuit declined to revisit Gundy en banc. 4

IV. DISCUSSION
Because Georgia law does not clearly answer whether the locations listed in Georgia’s alternatively phrased burglary statute are means or elements of the offense, we “peek” at the records of Richardson’s prior st ate convictions, which support the conclusion that the multiple
locations listed in the statute are alternative elements, rather than alternative means. We thus
conclude that the statute is divisible.

4 The Supreme Court recently denied Gun dy’s petition for a writ of certiorari. Gundy v. United States , 138 S. Ct. 66 (2017).No. 17-5517 Richardson v. United States Page 7

1. Georgia Burglary Statute’s Text
The Georgia burglary statute at issue does not set out different punishments for burglarizing different types of st ructures, so reference to the statutory text to see whether different punishments attach to the different variations provides no help. Mathis , 136 S. Ct. at 2256 (“If statutory alternatives carry different punishments, then under Apprendi they must be elements.”).
Further, unlike the Iowa burglary statute at issue in Mathis and the Tennessee aggravated burglary statue at issu e in our decision in United States v. Stitt , 860 F.3d 854, 857 (6th Cir. 2017), Georgia’s burglary statute does not use a single locational term such as “occupied structure” (Iowa Code § 713.1) or “habitation” (Tenn. Code A nn. § 39-14-403), which is then separately defined by means of “illustrative exam ples.” Nor does Georgia’s burglary statute use the broad term “includes,” unlike, for instan ce, the Alabama statute held indivisible in Howard , 742 F.3d at 1348. Thus, this inquiry is also of no help; although a statute with a single locational element that is separately define d is indivisible, the absence of a single locational element with a separate definition does not meanthat a statute is divisible.
2. Georgia Burglary Statute’s Structure
According to Gundy , the burglary statute creates three distinct and exhaustive categories of locations: “(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, railroa d car, aircraft, or any room or any part thereof.” 842 F.3d at 1165. Further, Gundy held that the statute’s repeated use of the disjunctive “or” indicates that those specifi cally listed locations are alternative elements of
the offense. “Each of the three subsets enumerates a finite list of specific structures in which the unlawful entry must occur to constitute the crim e of burglary. In doing so, the burglary statute has multiple locational elements effectively creating several different crimes.” Id. at 1167. Focusing on the disjunctive nature of the statute does find some support in precedent. For instance, in Descamps , the Supreme Court explained that a statute “stating that burglary involves entry into a building or an automobile” is divisible. Descamps v. United States , 570 U.S. 254, 257 (2013).No. 17-5517 Richardson v. United States Page 8

However, Gundy ’s conclusion that the statute’s structure supports finding that the locations are elements is problematic. First, Gundy ’s assertion that the statute has three subsets
of different locational elements is not based on any Georgia authority (and our research reveals none). Second, even if Gundy is correct to rely on the disjunctive nature of the statute to divide it into three subsets, as the dissent in Gundy pointed out,

Mathis makes clear that alternative phr asing 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 attributes of an alternatively phrased statute that would confirm its divisibility. First, “[i]f statutory alternatives carry different punishments, then under Apprendi 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.
Gundy , 842 F.3d at 1174 (Jill Pryor, J., dissenting).
3. Georgia Caselaw
The government argues that the clearest indi cation that the statute contains a locational element comes from the Georgia Supreme Court in DeFrancis v. Manning , 246 Ga. 307 (1980).
In Manning , the indictment charge d 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 . . . , said truck being locat ed on 10th Avenue West in the City of Cordele, Crisp County, Georgia, at the time of said entry therein by th e said accused.

Id. at 307. The Georgia Supreme Court set aside the defendant’s burglary conviction because the indictment did not charge th at the vehicle was “designe d for use as a dwelling.” Id. at 308. As the Georgia Supreme Court held, “that the ve hicle was designed as a dwelling was an essential
element of the offense which must be alleged.” Id. (emphasis added).No. 17-5517 Richardson v. United States Page 9

The government reads too much into Manning . Again, we agree with the Gundy dissent:
In [ Manning ], the Georgia Supreme Court upheld a lower court’s decision overturning a defendant’s convi ction for burglarizing a truc k. 271 S.E.2d at 210. The appellate court held the convicti on 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 [ Manning ] court held that the indictment was flawed because it failed to allege th at 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 [ Manning ] was not whether the burglary occurred in a truck versus a building, but rather whethe r the truck met the statute’s requirement that it be designed for use as a dw elling. Thus, the indictment in [ Manning ] was flawed because it did not allege a crime at all. In other words, [ Manning ] did not bar a burglary indictment from listing “ building, dwelling, tr uck, 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.
Gundy , 842 F.3d at 1176–77 (Jill Pryor, J., dissenting). Stated differently, because breaking into a car not adapted for overnight accommodation is not burglary, Manning emphasized that to trigger the burglary statute, it was “essential” that the “adapted for overnight accommodation” language be included in the indict ment and proved at trial.

Further, decisions issued after Manning reveal that Georgia’s a ppellate courts have not
read Manning to hold that a specific burglary location is an element of the offense. Notably, three years after Manning , the Georgia Court of Appeals held that “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.” Lloyd v. State , 308 S.E.2d 25, 25 (Ga. Ct. App. 1983).

But Lloyd too does not resolve th e threshold elements/means inquiry. Despite Lloyd ’s statement about the two elements of burglary, Lloyd “had nothing to do with the locational element” at issue here, Gundy , 842 F.3d at 1169, as the types of pl aces that could be burglarized
were not at issue in Lloyd . The sole issue in Lloyd was whether the evidence was sufficient to prove “lack of authority on the de fendant’s part to enter the bu ilding.” 308 S.E.2d at 25. Thus,No. 17-5517 Richardson v. United States Page 10

although Manning does not “definitively answer[] the [threshold elements-versus-means] question,” Mathis , 136 S. Ct. at 2256, neither does Lloyd

.
Richardson also relies on Weeks v. State , 616 S.E.2d 852 (Ga. Ct. App. 2005), and
Sanders v. State , 667 S.E.2d 396 (Ga. Ct. App. 2008), arguing that in Weeks
[t]he indictment charged that [the defendant] entered the “dwelling house of another: to wit, Anthony Sexton.” The pr oof at trial, however , showed that the house was under construction. The appellate court agreed that the incomplete building was not a dwelling, but found that “Week’s [sic] argument is not a challenge to the sufficiency of the evidence, for the evidence su fficed to show that this was a building under the statute and therefore could be burglarized.” In holding that proof that the structure was a “building,” which was not the type of structure alleged in the indi ctment, did not raise a suffi ciency argument, the court demonstrated that the type of structur e was not an essential element of the offense. The jury need not find a specifi c type of structure - any structure would suffice. If the type of structure was an e ssential element of the offense, failure of proof on that issue would have sustained a sufficiency challenge because it would have automatically affected the defendant’s substantial rights.
* * *
[ Sanders ] confronted the same issue . . . . Sa nders was charged with entering “the dwelling house of another, to wit: Aaron Fox.” The evidence at trial, however, did not establish that the building was a dwelling. Nonetheless, because the evidence was sufficient to find the place entered was a building, the court found that the evidence was sufficient to uphol d the burglary convi ction. Thus, under Georgia law, the type of structure need not be charged - and if one type of structure was actually charged, proof of a co mpletely different type of structure is sufficient to uphold a finding of guilt - cl early establishing that the type of structure is not an el ement of the offense.
(Appellant’s Br. at 12–13 (internal citations omitted).)

Richardson’s assertion that both Weeks and Sanders “made clear that the type of structure is not an element of burglary” ( Id. at 12) is unconvincing because neither Weeks nor Sanders actually held that the specific type of location is not an essential elemen t of burglary. In each case, the defendants merely argued that “the evid ence fatally varied from the allegations of the
indictment.” Weeks , 616 S.E.2d at 854; see Sanders , 667 S.E.2d at 399. Under Georgia law, whether a variance is fatal turns on whether “(1) . . . the accused [was] definitely informed as to the charges against him so that he [was] able to present his defense, and (2) [is] protected againstNo. 17-5517 Richardson v. United States Page 11

another prosecution for the same offense.” Battles v. State , 420 S.E.2d 303, 305 (Ga. 1992). In
both Weeks and Sanders , the appellate court held that the variances were not fatal because the description of the burgled structure in the indi ctment was sufficient and did not “impede[] [the defendant’s] ability to present a subsequent defense or surprise him at trial, and [ensured that] he cannot be subjected to a subse quent prosecution for the burglary of the building in question.”
Weeks , 616 S.E.2d at 855. Thus, both Weeks and Sanders are more properly characterized as fatal-variance cases that, contrary to Richardson’ s assertions, do not definitively demonstrate that the locations listed in the Georgia burglary stat ute are alternative mean s of satisfying a single
element.

Further, as the Gundy majority and the government here point out, the Georgia Court of Appeals has repeatedly held that“where the defendant is charge d with burglary, the indictment must specify the location of the burglary,” Morris v. State , 303 S.E.2d 492, 494 (Ga. Ct. App. 1983), and the prosecution must “prove the specific location of a burglary in order to obtain a
conviction.” State v. Ramos , 243 S.E.2d 693, 694 (Ga. Ct. App. 1978) . Indeed, in every Georgia burglary case cited by Richardson in his brief, the indictment spec ified the particular type of location burglarized. See Sanders , 667 S.E.2d at 399 (a “dwelling house”); Weeks , 616 S.E.2d at 853 (same). 5 As Gundy held,
[t]he U.S. Supreme Court has told us that “[a] prosecutor char ging 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 dwelli ng, building, railroad car, vehicle, or watercraft—is the hallmark of a divisible statute.
842 F.3d at 1167. However, the Georgia cases addr essing indictment requirements take us only so far; they do not definitively establish that the specified burglary locations are alternative
elements of the offense. The cases do not addre ss the elements of the burglary statute; rather, they deal with notice to the accused and double jeopardy. As the Gundy dissent aptly observed,

5 It is also notable that not one of the Georgia cases cited by Richardson holds that an indictment may charge a generic burglary (e.g., unauthorized entry into a “building or structure” ) but that a jury may instead find a defendant guilty of a non-generic burglary (e.g., unauthorized entry into an aircraft).No. 17-5517 Richardson v. United States Page 12

the [ Gundy ] 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 Geor gia burglary statute must be “why under Georgia law a prosecutor must select, id entify, and charge the specific place or location that was burgled.” . . . This specu lation lacks support. Rather, as a case the majority cites makes clear, an indictment must include the location burglarized in order “to give the de fendant 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 elemen ts or means of committing the crime because these cases were concerned only w ith the need to “inform the accused as to the 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 , 317 Ga. App. 584, 732 S.E.2d 110, 115 (2012).
842 F.3d at 1176 (Jill Pryor, J., dissenting).
Finally, Richardson relies on Geor gia’s pattern jury instructions. He argues that because
the instructions refer to the burglarized location only as “any building or dwelling” without listing the other locations enumerated in the stat ute (such as “aircraft”), the instructions support the conclusion that the type of location is not an element of burglary. (Appellant’s Br. at 15–16 (citing Ga. Suggested Pattern Jury Instr., Vol. II, Crim. §§ 2.62.10, 2.62.20 [hereinafter Ga. Crim. Jury Instr.]).) Richardson also contrasts burglary’s intent element with the locational list. Because there are two types of intent (to comm it theft and to commit a felony), Georgia has two sets of jury instructions for burglary. Richar dson thus surmises that the lack of separate
instructions as to each location enumerated in the burglary statute indicates that location is not a statutory element.
However, the proposed jury instructions also do not resolve the elements/means inquiry. First, it appears that the phrase “any building or dwelling” was inte nded only as a placeholder; as the instructions direct, a trial judge should “[ c]harge only the appropriate language” from the recommended instruction and “adap t parentheticals to the indictme nt and evidence.” Ga. Crim. Jury Instr., Preamble to § 2.62.10. And the requireme nt that the instructi ons be modified to comport with the indictment is well-settled in Georgia. See, e.g. , Childs v. State , 357 S.E.2d 48, 58 (Ga. 1987) (stating that it “is error to charge the jury that a crime may be committed by eitherNo. 17-5517 Richardson v. United States Page 13

of two methods, when the indictment char ges it was committed by one specific method”) (internal quotations marks, alterations, and citation omitted).
Second, although the relevant langu age of the burglary statut e did not change from the pre-July-2012 version to the 2012-2017 version, 6 the language of th e corresponding jury
instructions did. 7 The jury instructions now list in parentheses each location enumerated in the statute. Thus, we would have to conclude that the statute is indivisi ble under one set of jury instructions (because, as Richardson argues, the instructions include the phrase “any building or dwelling” instead of the full li st of locations) but divisible under a later version of jury instructions (because the instru ctions now include the full lis t of locations), even though the relevant language in the underlying burglary statute remained unchanged. Thus, Georgia’s pattern jury instructions ar e also of little help.
4. Georgia Law Fails to Provide a Clear Answer
Richardson and the government, as we ll as the majority and dissent in Gundy , present colorable arguments and reasonable inferences. However, neither side has established its position with certainty. Unlike the Io wa burglary statute at issue in Mathis , which relied on a clear statement from the Iowa Supreme Court th at the premises listed in the statute were “alternative method[s]” of satis fying the locational element, Mathis , 136 S. Ct. at 2256, we do not have the benefit of such a clear pronoun cement from Georgia’s highest court.
Although the parties’ arguments do not definitively answer th e threshold elements/means inquiry, they do establish thatGeorgia’s burglary statute and the law interpreting it are ambiguous as to whether the diffe rent types of listed locations are elements or means of committing the offense. This is not surprising; “the divergence of outcomes after Mathis suggests that the ‘elements or means’ inquiry is not quite as easy as th e Supreme Court thought, not the least because state legislatures and stat e courts do not draft thei r laws and craft their

6 Compare Ga. Code Ann. § 16-7-1 (1980) with Ga. Code Ann. § 16-7-1 (2012).

7 Compare Ga. Crim. Jury Instr. § 2.62.10 with Ga. Crim. Jury Instr. § 2.62.11.No. 17-5517 Richardson v. United States Page 14

decisions with this particular distinction in mind.” United States v. Steiner , 847 F.3d 103, 120 (3d Cir. 2017). 8

Here, even the most persuasi ve arguments offered by each side do not “definitively” answer the threshold question. Mathis , 136, S.Ct. at 2256. We disagree with the Gundy majority that the burglary statute’s text and structure support the conclusion th at the locations listed in the
statute are elements rather than mean s. But we also disagree with the Gundy dissent that Georgia
“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.” 842 F.3d at 1171 (emphasis added).
Thus, because Georgia law fails to provide a clear answer, a Mathis “peek” at the records of Richardson’s three Georgi a burglaries is necessary.

5. Mathis “Peek”

As the Mathis Court explained, “if state law fails to provide clear answers, federal judges have another place to l ook: the record of a prior convicti on itself.” 136, S.Ct. at 2256. The Court cautioned that this “peek” at the record documents “is for the sole and limited purpose of determining whether the listed item s are elements of the offense.” Id. at 2256–57 (quotation marks and alterations omitted). The Court also gave contrasting examples of how to employ the “peek” to answer the elements/means inquiry.
Suppose, for example, that one count of an indictment and correlative jury instructions charge a defendant with burg ling a “building, structure, or vehicle”— thus reiterating all the terms of Iowa’s law. That is as clear an indication as any that each alternative is only a possible m eans of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt. So too if those documents use a single umbrella term like “premises”: Once again, the record would then reveal what th e prosecutor has to (and does not have to) demonstrate

8 In his dissent in Mathis , Justice Breyer criticized the elemen ts/means inquiry, predicting it would “produce a time-consuming legal tangle” an d prove to be “not practical” in part because “there are very few States where one can find authoritative ju dicial opinions that decide the means/element question.” Mathis , 136 S. Ct. at 2263–64 (Breyer, J., dissenting). Justice Alito, also dissenting in Mathis , was similarly concerned that “[t]he Court’s approach calls for sentencing judges to delve into pointless abstract questions” and that lower courts would struggle to apply the means-element distinction. Id. at 2268 (Alito, J., dissenting); see also id. at 2264 (“Because of the ever-morphing analysis and the increasingly blurred articulation of applicable standards, [lower courts] are being asked to decide, without clear and workable standards, whether disjunctive phrases in a criminal law define alternative elements of a crime or alternative mean s of committing it.”) (Breyer, J., dissenting) (quoting Omargharib v. Holder , 775 F.3d 192, 200 (4th Cir. 2014) (Niemeyer, J., concurring)).No. 17-5517 Richardson v. United States Page 15

to prevail. See Descamps , 570 U.S., at ––––, 133 S.Ct., at 2290. Conversely, 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. Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy “ Taylor ’s demand for certainty” wh en determining whether a defendant was convicted of a generic offense. Shepard , 544 U.S., at 21, 125 S.Ct. 1254. But between those documents and st ate law, that kind of indeterminacy should prove more the exception than the rule.

Mathis , 136 S. Ct. at 2257. Here, the langua ge in Richardson’s indictments 9 —the only available record documents—“satisf[ies] Taylor ’s demand for certainty when determining whether a defendant was convicted of a generic offense.” Id. at 2257 (internal quotation marks omitted). Richardson’s burglary indictments charge him withburglarizing “the dwelling house of another,” (R. 35-1, PID 135), “a building, to wit: [a café,]” ( id. at 139), and “the dwelling house of another,” ( id. at 141). Each indictment references onl y one of the several alternative locations listed in Georgia’s burglary statute. Th is supports the government’s argument (and Gundy ’s holding) that the alternative locations are elements and the statute is divisible as to the locations that can be burglarized. 10

Having concluded that Georgia’s burglary statute is divisible, we must determine whether Richardson’s three prior Georgia burglaries are generic under the ACCA. In doing so, we employ the modified categorical approach. He re, Richardson’s state court indictments make clear that his burglary convictions involved thr ee elements: (1) an unlawful entry (2) into a dwelling house or building (3) with intent to commit a crime therein. These elements substantially conform to the generic definiti on of burglary announced by the Supreme Court.

9 The first 1999 indictment charged th at Richardson “did without authority and with the intent to commit a felony or theft therein enter the dwelling house of another . . . .” (R. 35-1, PID 135.) The second 1999 indictment charged that Richardson “did without authority and with the intent to commit a felony, to wit: theft, therein entered a building, to wit: [a café.]” ( Id. at 139.) The 2003 indictment charged that Richardson “did, without authority and with the intent to commit a theft therein, enter and re main within the dwelling house of another . . . .” (Id. at 141.)
10 Richardson’s only argument here is that “[a] Mathis ‘peek’ invites unlawful judicial factfinding” and “invites the very collapse of the distinction between the categorical and modified cat egorical approach cautioned against in Descamps .” (Reply Br. at 12.) Having engaged in the an alysis here, we understand the practical reality of Richardson’s argument. Still, that ar gument demonstrates disagreement with Mathis and the Supreme Court’s direction to peek at the records of a defendant’s prior convictions in search of clarity. But Mathis is the law.No. 17-5517 Richardson v. United States Page 16

See Taylor , 495 U.S. at 599, 602 (stating that generic bur glary is an “unlawful or unprivileged entry into, or remaining in, a building or stru cture, with intent to commit a crime”).
Therefore, Richardson’s prior Georgia burglary convictions at issue qualify as violent
felonies under the ACCA’s enumerated-crimes cl ause, and the district court did not err in sentencing Richardson as an armed career criminal.

V. CONCLUSION

We AFFIRM the judgment of the district court.