United States Court of Appeals

For the Eighth Circuit 

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No. 20-3116

 ________________________ 

United States of America

 Plaintiff - Appellee

v.

Carlos Dejuan Hutchinson

 Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids 

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Submitted: September 22, 2021

Filed: March 3, 2022

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Before KELLY, ERICKSON, and GRASZ, Circuit Judges. 

ERICKSON, Circuit Judge.

Carlos Dejuan Hutchinson (“Hutchinson”) pled guilty to possession of a 

firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and (g)(3). 

The district court1 found that Hutchinson had three prior qualifying felony 

1

The Honorable C. J. Williams, United States District Judge for the Northern 

District of Iowa. 

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convictions and imposed an enhanced sentence under the Armed Career Criminal 

Act (the “ACCA”), 18 U.S.C. § 924(e). Specifically, the district court found that 

Hutchinson’s three burglary convictions under Texas Penal Code Ann. 

§ 30.02(c)(2)2 qualified as “violent felony” predicate offenses. Hutchinson appeals, 

contending the court erred because the definition of “burglary” in Texas Penal Code 

Ann. § 30.02(a) is broader than the generic definition of “burglary” in Taylor v. 

United States, 495 U.S. 575, 599 (1990). We disagree and affirm the district court. 

 

I. BACKGROUND

Following a traffic stop on October 12, 2019, in Cedar Rapids, Iowa, 

Hutchinson was subjected to a lawful search during which officers found a pistol 

and ammunition in his jeans’ pockets. Hutchinson was charged with one count of 

possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) 

and (g)(3). He entered into a plea agreement with the government and consented to 

preparation of a pre-plea presentence investigation report (the “PSIR”). 

Noting Hutchinson’s three prior Texas burglary convictions, the PSIR 

recommended that Hutchinson be sentenced as an armed career criminal pursuant to 

18 U.S.C. § 924(e)(1). The indictments underlying two of the three convictions 

alleged Hutchinson not only intended to unlawfully enter the habitations, but he also

had the intent to commit theft therein.

Hutchinson objected to the PSIR’s recommendation, contending his Texas

convictions did not qualify as predicate offenses because Texas’s burglary statute is

indivisible and Texas Penal Code Ann. § 30.02(a) does not contain the requisite

“specific intent” element required under Taylor, 495 U.S. at 599. See Texas Penal

2

A burglary conviction under Texas Penal Code Ann. § 30.02(a) is a seconddegree felony if committed in a habitation. Tex. Penal Code Ann. § 30.02(c)(2) 

(West 2017). Hutchinson’s 1997 and 2008 burglary convictions were under prior 

versions of Texas Penal Code Ann. § 30.02(a), but the statute’s minor amendments 

following his convictions do not affect our analysis. 
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Code Ann. § 30.02(a)(3) (defining “burglary” to include the elements of “enter[ing] 

a building or habitation [without the effective consent of the owner] and 

commit[ting] or attempt[ing] to commit a felony, theft, or an assault”). 

The district court rejected Hutchinson’s argument, concluding Hutchinson’s 

convictions were qualifying predicate offenses because Texas Penal Code Ann. 

§ 30.02(a)(3) has an inherent specific intent requirement. The district court relied 

on the Fifth Circuit’s reasoning in United States v. Herrold, 941 F.3d 173 (5th Cir. 

2019) (en banc), cert. denied, 141 S. Ct. 273 (2020), which determined that Texas 

Penal Code Ann. § 30.02(a)(3)’s elements of “burglary” are generic and that

convictions thereunder may be “qualifying predicates for a sentence enhancement 

under the ACCA.” Herrold, 941 F.3d at 182. 

On September 28, 2020, the district court sentenced Hutchinson to the 

mandatory minimum term of fifteen years’ imprisonment set forth in 18 U.S.C. 

§ 924(e)(1). Hutchinson appeals. 

II. ANALYSIS 

The issue before us is whether the district court erred when it determined

Texas Penal Code Ann. § 30.02(a)(3) requires the government to prove that the 

defendant “inten[ded] to commit a crime” after his or her unlawful entry. Taylor, 

495 U.S. at 599 (defining the elements of generic burglary). We review the district 

court’s legal findings on this issue de novo. See United States v. Vanoy, 957 F.3d 

865, 867 (8th Cir. 2020). 

Burglary qualifies as an enumerated predicate offense for purposes of the 

ACCA when the state law requires the following generic elements: “unlawful or 

unprivileged entry into, or remaining in, a building or structure, with intent to 

commit a crime.” Taylor, 495 U.S. at 599; see Descamps v. United States, 570 U.S. 

254, 260–61 (2013) (stating that Taylor set forth the rule for determining whether a 

prior conviction qualifies as an enumerated predicate offense under the ACCA). We 
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begin the analysis by applying a categorical approach to determine whether the

statute meets the “generic” definition of “burglary.” In so doing, we consider the 

language of the statute and not the particular facts underlying the defendant’s prior 

offenses. Descamps, 570 U.S. at 261. 

Texas Penal Code Ann. § 30.02(a) provides:

A person commits an offense [of burglary] if, without the 

effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion 

of a building) not then open to the public, with intent 

to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a 

felony, theft, or an assault, in a building or 

habitation; or

(3) enters a building or habitation and commits or 

attempts to commit a felony, theft, or an assault. 

Texas Penal Code Ann. § 30.02(a) (West 2017). 

 

Because § 30.02(a) lists alternative ways that burglary may be committed, we 

also analyze the divisibility of the statute. The question we consider in this analysis 

is whether the statute “list[s] elements in the alternative” and criminalizes multiple 

actions, which would render the statute divisible; or, whether the statute “sets out a 

single (or ‘indivisible’) set of elements to define a single crime.” Mathis v. United 

States, 136 S. Ct. 2243, 2248–49 (2016). If the statute is indivisible, then we utilize 

the “categorical approach” and “line[] up that crime’s elements alongside those of 

the generic offense and see[] if they match.” Id. at 2248. If, on the other hand, the 

statute defines multiple crimes as a divisible statute, then we apply the “modified 

categorical approach,” which would allow us to review the record from the Texas 

court that convicted Hutchinson in order to determine which subsection of § 30.02(a)
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served as the basis for Hutchinson’s conviction and whether his conviction met the 

generic elements. Id. at 2249. 

While the district court did not make an express finding on the divisibility of 

§ 30.02(a), it adopted the reasoning of the Court of Appeals for the Fifth Circuit in 

Herrold, which found that the statute was indivisible. 941 F.3d at 177. Neither party 

has raised any meaningful arguments to contest this finding. By its plain language, 

the statute is set forth in the disjunctive, and, as found by the Texas Court of Appeals, 

it identifies three alternative ways by which a person may commit the single crime 

of burglary. See Martinez v. State, 269 S.W.3d 777, 783 (Tex. Ct. App. 2008) 

(holding that the Texas Legislature did not intend to create “distinct criminal 

offenses” under Texas Penal Code Ann. § 30.02(a)(1) and § 30.02(a)(3)). 

Next, when determining whether § 30.02(a)(3) requires the government to 

prove the defendant had the intent to cause a specific unlawful result after a nonconsensual entry, we note that the Fourth and Fifth Circuits have held it does. See

United States v. Pena, 952 F.3d 503, 510–11 (4th Cir. 2020) (“[W]e conclude that 

Texas burglary qualifies as generic burglary as defined in Taylor”); United States v. 

Bonilla, 687 F.3d 188, 193 (4th Cir. 2012) (noting that § 30.02(a)(3)’s element of an 

attempted or completed crime inherently requires an intent to commit that crime), 

cert. denied, 571 U.S. 829 (2013); see also Herrold, 941 F.3d at 179 (“Texas law 

rejects Herrold’s no-intent interpretation”). 

This Court briefly analyzed a similar question in an unpublished decision and

concluded that Texas Penal Code Ann. § 30.02(a)’s definition of “burglary” met the 

generic definition even though the definition of “habitation” included a “vehicle that 

is adapted for the overnight accommodation of persons.” United States v. Wallis, 

100 F.3d 960 (8th Cir. 1996) (per curiam) (quoting Texas Penal Code Ann. 

§ 30.01(1)) (internal quotation marks omitted). Consistent with our previous 

decision and finding persuasive the Fourth and Fifth Circuits’ decisions, we 

conclude that Texas Penal Code Ann. § 30.02(a)(3) contains the generic specific 
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intent requirement necessary for a conviction under this statute to qualify as a 

predicate offense for purposes of the ACCA. 

Hutchinson has not demonstrated a “realistic probability” that Texas Penal 

Code Ann. § 30.02(a)(3) encompasses “conduct that falls outside the generic 

definition” of burglary. Gonzalez v. Wilkinson, 990 F.3d 654, 659 (8th Cir. 2021) 

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)) (internal quotation 

marks omitted) (discussing the application of the “realistic probability” analysis set 

forth by the United States Supreme Court in Duenas-Alvarez, 549 U.S. at 193, and 

Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). The cases relied on by Hutchinson

do not meet this standard. 

The case of Lopez v. State, No. PD-0245-13, 2013 WL 6123577 (Tex. Crim. 

App. Nov. 20, 2013), is an unpublished decision in which the defendant plainly had 

the specific intent to commit assault after he unlawfully broke into his uncle’s house

and beat his uncle in his bed. 2013 WL 6123577, at *3. The second cited case, 

Rangel v. State, 179 S.W.3d 64 (Tex. Ct. App. 2005), is equally unavailing. In 

Rangel, the defendant was convicted under Texas Penal Code Ann. § 30.02(a)(3) for 

breaking into his on-and-off girlfriend’s home and slashing his girlfriend’s other onand-off boyfriend with a knife. Id. at 67, 69. In that case, the court noted the nature 

of the aggravated assault inherently demonstrated the defendant’s intention to 

commit the assault. Id. at 72–73. Hutchinson’s third case is also unpersuasive as 

the court in that case did not obviate an inherent intent requirement under

§ 30.02(a)(3), but instead noted that this subsection of Texas’s burglary statute did 

not require the state to prove intent prior to entry into the residence. Daniel v. State, 

No. 07-17-00216-CR, 2018 WL 6581507, at *3 (Tex. Ct. App. Dec. 13, 2018) 

(unpublished). 

 

In summary, the Texas Court of Criminal Appeals has made plain that the 

Texas burglary statute requires a specific intent to commit the crime. See Jacob v. 

State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995) (en banc) (discussing how the 

government’s proof of an attempted or completed crime after an unlawful entry 
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under Texas Penal Code Ann. § 30.02(a)(3) may inherently prove the specific intent 

to commit the crime); DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988) 

(en banc) (finding the proof of an “attempted or completed” crime under Texas Penal 

Code Ann. § 30.02(a)(3) “merely supplants the specific intent” requirement in 

§§ 30.02(a)(1) and (2)). We have not been pointed to any case to the contrary. 

Hutchinson has neither briefed nor argued the question of whether Texas 

Penal Code Ann. § 30.02(a)(3) does not satisfy the elements of generic burglary 

because generic burglary may require that specific intent exists at the moment of 

entry.3

 We agree with the Fourth Circuit’s statement in Pena, 952 F.3d at 511, that 

this is an interesting inquiry, but we will not address an issue the parties have not 

argued or one the Supreme Court has not clearly mandated we answer. See Shanklin 

v. Fitzgerald, 397 F.3d 596, 601 (8th Cir. 2005) (“Absent exceptional circumstances, 

we cannot consider issues not raised in the district court.”). 

III. CONCLUSION

 We affirm the judgment and sentence of the district court.

KELLY, Circuit Judge, dissenting. 

Under the ACCA, the violent felony predicate offense of generic burglary 

requires the elements of an unlawful entry into, or remaining in, a building or other 

structure, with intent to commit a crime. Taylor v. United States, 495 U.S. 575, 598 

(1990). The type of “intent to commit a crime” for generic burglary is specific intent. 

See, e.g., United States v. Bugh, 459 F. Supp. 3d 1184, 1199 (D. Minn. 2020) (citing 

Taylor, 495 U.S. at 599); see also id. at 1199 nn.25–26. 

3

The Supreme Court, in dicta,stated that generic burglary requires the specific 

intent to be formed at the moment of entry. See Quarles v. United States, 139 S. Ct. 

1872, 1878 (2019) (“Put simply, for burglary predicated on unlawful entry, the 

defendant must have the intent to commit a crime at the time of entry.”). 
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Texas Penal Code § 30.02(a)(3) provides, “A person commits an offense if, 

without the effective consent of the owner, the person . . . enters a building or 

habitation and commits or attempts to commit a felony, theft, or an assault.” Unlike 

§§ 30.02(a)(1) and (2), this provision does not contain an element of “intent to 

commit a felony, theft, or an assault,” but rather requires only that a felony, theft, or 

assault was committed or attempted. In other words, § 32.02(a)(3) “dispenses with 

the need to prove intent . . . when the actor is caught in the act” of committing or 

attempting a crime. DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988). 

Relying on the commission of a felony, theft, or assault under § 32.02(a)(3) 

in place of proof of intent conflicts with the generic definition of burglary under the 

ACCA. This is because a conviction under the Texas burglary statute can be 

supported by commission of a crime that merely requires a mens rea of recklessness, 

such as assault, see Tex. Penal Code § 22.01(a)(1), manslaughter, id. § 19.04(a), or 

criminally negligent homicide, id. § 19.05(a). Commission of a crime of 

recklessness cannot replace the specific intent to commit a crime necessary for a 

categorical match; there can be no specific intent to commit a reckless crime. Put 

differently, just as one cannot attempt to commit a reckless crime because an attempt 

requires specific intent, one cannot have specific intent to commit a crime with a 

mens rea of recklessness. See United States v. Matthews, No. 20-1345, 2022 WL 

413997, at *2 (8th Cir. Feb. 11, 2022) (“All attempts, regardless of the mental state 

of the underlying crime, are themselves specific-intent crimes. . . . ‘[O]ne cannot

attempt to commit a crime which only requires reckless conduct.’” (quoting State v. 

Zupetz, 322 N.W.2d 730, 735 (Minn. 1982))). Because a conviction under 

§ 32.02(a)(3) requires only commission of a crime of recklessness without separate 

proof of intent, the statute is broader on its face than generic burglary, which requires 

proof of specific intent to commit a crime. The inquiry should end here. 

The court faults Hutchinson for not demonstrating a realistic probability that 

Texas Penal Code § 30.02(a)(3) encompasses conduct that falls outside the generic 

definition of burglary. But the court did not find § 32.02(a)(3) to be ambiguous, and, 

indeed, no party has argued that it is. Under these circumstances, a realistic 
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probability showing is not required. Gonzalez v. Wilkinson, 990 F.3d 654, 660–61 

(8th Cir. 2021) (rejecting a requirement that petitioners “must prove through specific 

convictions that unambiguous laws really mean what they say” and adopting a rule 

that “in applying the categorical approach, state law crimes should be given their 

plain meaning.” (cleaned up) (quotation omitted)). 

Decisions by the Fifth Circuit Court of Appeals and the Texas Court of 

Criminal Appeals do not change my view of the categorical analysis. The Fifth 

Circuit, in United States v. Herrold, rejected the defendant’s argument that 

§ 32.02(a)(3) is not a categorical match to generic burglary because it “lacks a

requirement that an offender form a specific intent to commit another crime,” finding 

this “argument fail[ed] for lack of supportive Texas cases.” 941 F.3d 173, 178 (5th 

Cir. 2019). In other words, the Fifth Circuit rejected the defendant’s argument—the

same argument presented by Hutchinson in this case—because the Fifth Circuit 

requires a showing of a realistic probability “that the State would apply its statute to 

conduct that falls outside the generic definition of the crime.” Id. at 179. But in the

Eighth Circuit, when a state statute is unambiguous, we do not require such a 

showing.4

 Gonzalez, 990 F.3d at 660–61. 

Nonetheless, the Fifth Circuit also proceeded, in dicta, to reject “Herrold’s nointent interpretation” based on the construction of the statute articulated in 

4

Even if this court should look to how the Texas burglary statute has been 

applied in burglary prosecutions, Hutchinson may have shown a realistic probability 

that Texas would apply its burglary statute to conduct that falls outside the generic 

definition. For example, in Daniel v. State, the defendant was charged with burglary 

under § 30.02(a)(3), and the court concluded that, “[a]ll the State was required to 

prove was that he entered the residence without consent or permission and while 

inside, assaulted or attempted to assault [the victims],” No. 07-17-00216-CR, 2018 

WL 6581507, at *3 (Tex. App. Dec. 13, 2018), yet assault may be committed with 

a mens rea of recklessness, Tex. Penal Code § 22.01(a)(1). Likewise in Rangel v. 

State, when analyzing whether assault was a lesser included offense of burglary 

under § 30.02(a)(3), the court found that the elements of burglary did not include 

intent to commit a crime. 179 S.W.3d 64, 69–71 (Tex. App. 2005). 
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DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988). See Herrold, 941 F.3d 

at 179. In DeVaughn, however, the Texas Court of Criminal Appeals did not 

examine whether the Texas burglary statute is a categorical match to generic 

burglary, but merely described the “three distinct ways in which one may commit 

the offense of burglary under the present version of the Penal Code.” DeVaughn, 

749 S.W.2d at 64. The court observed, “[p]roof of the intent to commit either theft 

or a felony was, and is, a necessary element in the State’s case” in §§ 30.02(a)(1) 

and (2), but for § 30.02(a)(3), “the attempted or completed theft or felony . . . merely 

supplants the specific intent which accompanies entry in §§ 30.02(a)(1) and (2).” Id.

at 65. The court concluded, “the gravamen of the offense of burglary clearly remains 

entry of a building or habitation without the effective consent of the owner, 

accompanied by either the required mental state, under §§ 30.02(a)(1) and (2), [] or 

the further requisite acts or omissions, under § 30.02(a)(3).” Id. (emphasis added). 

As relevant here, the Texas court did not reject the notion that § 30.02(a)(3) includes 

the commission of crimes of recklessness or criminal negligence. DeVaughn notes 

that the unlawful entry into a building must be knowing or voluntary under 

§ 30.02(a)(3), but says nothing about whether the “requisite acts” in § 30.02(a)(3) 

must be a specific-intent crime. See DeVaughn, 749 S.W.2d at 64–65; id. at 64 n.3, 

65 n.4. 

Thus, the plain language of the Texas burglary statute and DeVaughn both 

support the conclusion that § 30.02(a)(3) does not require proof of a specific-intent 

crime as would be necessary to make a categorical match. The Seventh Circuit’s 

interpretation of the similar Minnesota burglary statute is in accord. See Van 

Cannon v. United States, 890 F.3d 656 (7th Cir. 2018). The Minnesota burglary 

statute provides: “Whoever enters a building without consent and with intent to 

commit a crime, or enters a building without consent and commits a crime while in 

the building, either directly or as an accomplice, commits burglary[.]” Minn. Stat. 

§ 609.582(2)(a). The Seventh Circuit found that the statute is broader than generic 

burglary, rejecting the government’s position that “intent to commit a crime is 

implicit because the statute requires proof of a completed crime within the trespassed 

building,” since “not all crimes are intentional; some require only recklessness or 
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criminal negligence.”5

 Van Cannon, 890 F.3d at 664. Specific intent to commit a 

crime is likewise not implicit in the Texas burglary statute. 

In my view, the plain language of the Texas burglary statute shows that it is 

categorically broader than generic burglary under the ACCA. Because the statute is 

unambiguous, there is no role for the realistic probability analysis to play. I would 

therefore vacate Hutchinson’s sentence and remand for resentencing. 

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5

The Seventh Circuit also found that “Taylor’s elements-based approach does 

not countenance imposing an enhanced sentence[] based on implicit features in the 

crime of conviction.” Van Cannon, 890 F.3d at 664.