United States Court of Appeals

For the Eighth Circuit

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No. 17-2878

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Jamie Nicol Nilsen

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the District of North Dakota - Bismarck

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Submitted: June 15, 2018

Filed: July 26, 2018

[Unpublished]

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Before KELLY, ARNOLD, and STRAS, Circuit Judges.

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PER CURIAM.

Jamie Nicol Nilsen appeals the district court’s denial of his motion to vacate,

set aside, or correct his sentence under 28 U.S.C. § 2255 and Johnson v. United

States, 135 S. Ct. 2551 (2015). In 2012, Nilsen pleaded guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and in 2013, he was

sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),
based on his prior North Dakota aggravated assault conviction, and two North Dakota

burglary convictions under N.D. Cent. Code § 12.1-22-02(1). The district court

denied Nilsen’s § 2255 motion, concluding that his aggravated assault and burglary

convictions still qualified as violent felonies under the ACCA. During the pendency

of this appeal, another panel ofthis court held that North Dakota burglary convictions

do not qualify as violent felonies under the ACCA. See United States v. Kinney, 888

F.3d 360, 363–65 (8th Cir. 2018) (“[C]onvictions under N.D. Cent. Code § 12.1-22-

02 . . . cannot categorically qualify as violent felonies under the ACCA.”), reh’g

denied, No. 16-3764 (8th Cir.July 6, 2018) (unpublished order). “It is a cardinal rule

in our circuit that one panel is bound by the decision of a prior panel.” Mader v.

United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (quoting Owsley v.

Luebbers, 281 F.3d 687, 690 (8th Cir. 2002)). Accordingly, the judgment of the

district court is reversed and this case is remanded to the district court for further

proceedings.

ARNOLD, Circuit Judge, concurring.

I concur fully in the per curiam opinion, but write separately to make a point

not raised by this appeal, namely, that the North Dakota burglary statute, N.D. Cent.

Code § 12.1-22-02, is divisible on its face. The statute proscribes a class C felony

offense,see § 12.1-22-02(1), and a class B felony offense, see § 12.1-22-02(2). Since

those offenses carry different punishments, see N.D. Cent. Code § 12.1-32-01(3), (4),

they are different offenses, instead of different means of committing a single offense.

See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016).

In United States v. Kinney, 888 F.3d 360 (8th Cir. 2018), we asserted that

"convictions under N.D. Cent. Code § 12.1-22-02 . . . cannot categorically qualify as

violent felonies under the ACCA." Id. at 364. But we could not have meant that both

subsections of the statute are overbroad since Kinney never even looked at the second

subsection. We considered only whether the class C burglary offense in N.D. Cent.

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Code § 12.1-22-02(1) is indivisible and overbroad: We did not mention the narrower

class B burglary offense(s) in § 12.1-22-02(2). In Kinney, moreover, we applied the

categorical approach only to the phrase "building or occupied structure" in subsection

(1) of the statute. See id. We did not evaluate subsection (2) and had no reason to do

so. Kinney's North Dakota burglary convictions were only of the class C offense, and

the arguments on appeal focused only on subsection (1). Though Kinney speaks

broadly, we need to read it in the context of the issue it addressed and decided and

ought to interpret its holding as being restricted to that issue. See German All. Ins. Co.

v. Home Water Supply Co., 226 U.S. 220, 234 (1912).

In an appropriate future case, in other words, I believe parties are free to raise

the issue of whether N.D. Cent. Code § 12.1-22-02(2) is indivisible or overbroad.

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