# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 17, 2018 *

Decided October 18, 2018

Before

DIANE P. WOOD, Chief Judge

J OEL M. FLAUM, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

No. 18

‐ 1646

UNITED STATES of AMERICA,

Plaintiff

‐ Appellant

,

v

.

J EREMY HANDSHOE,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Indiana,

Fort Wayne Division.

No. 1:15

‐ CR

‐ 35

‐ 001

Theresa L. Springmann,

Chief Judge

.

O R D E R

Jeremy Handshoe, a tattoo parlor owner, twice sold firearms in 2015 to

undercover police officers from the back room of his shop; he later pleaded guilty to

two counts of possessing a firearm after a felony conviction, see 18 U.S.C. § 922(g)(1).

The district judge sentenced Handshoe to the minimum 15

‐ year term on each count,

running concurrently, because she found that Handshoe’s previous burglary

* We have agreed to decide the case without oral argument because the issues

have been authoritatively decided. F ED

. R. A PP

. P. 34(a)(2)(B). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 1646 Page 2

convictions under I ND

. C ODE § 35

‐ 43

‐ 2

‐ 1 (1994, 2006) qualified as “violent felonies”

under the Armed Career Criminal Act, 18 U.S.C. § 924(e). 1 Handshoe appeals, arguing

that his burglary convictions are not violent felonies under the Act, so he should not be

subject to the 15

‐ year sentence that the Act requires. We affirm.

To determine whether a prior conviction counts as a violent felony under the

Armed Career Criminal Act, sentencing courts apply a “categorical” approach that

focuses exclusively on the elements of the crime of conviction and not on the facts

underlying the conviction. Mathis v. United States

, 136 S. Ct. 2243, 2248 (2016). If the

elements of the crime of conviction are broader than the elements of the generic version

of the offense—that is, if it criminalizes more behavior—then the crime of conviction is

not a violent felony. Id. at 2251.

Indiana burglary practically mirrors the generic definition. Indiana’s statute

reads: “A person who breaks and enters the building or structure of another person,

with intent to commit a felony in it, commits burglary

... .” I ND

. C ODE § 35

‐ 43

‐ 2

‐ 1 (1994,

2006). “Generic burglary” has been defined by the Supreme Court as “unlawful or

unprivileged entry into

... a building or other structure with intent to commit a crime.”

Taylor v. United States

, 495 U.S. 575, 598 (1990).

Handshoe argues that Indiana has interpreted its statutory reference to “building

or structure” to include locations like boats, cars, and tents that are excluded from the

generic definition in Mathis

, 136 S. Ct. at 2250. In support, he points to the Indiana

Supreme Court’s decision in State v. Hancock

, 65 N.E. 3d 585, 593 (Ind. 2016) that

Indiana’s burglary statute is “substantially similar” to Ohio’s, which explicitly includes

vehicles and temporary shelters. O HIO R EV

. C ODE A NN

. §§ 2909.01(C), 2911.12(A)(2)

(2018).

We have already concluded, however, that Indiana burglary does not “sweep[]

more broadly” than generic burglary. United States v. Perry

, 862 F.3d 620, 622–23

(7th Cir. 2017) (quoting Descamps v. United States

, 570 U.S. 254, 261 (2013)); see also United

States v. Foster

, 877 F.3d 343, 345 (7th Cir. 2017) (affirming Perry’s rationale). In Perry

, we

pointed out that no Indiana burglary conviction has arisen from the breaking and

entering of locations not included in the generic definition. 862 F.3d at 624.

1 Handshoe was convicted for breaking and entering two retail stores (1997), a

muffler

‐ repair shop and a residence (1998), and two restaurants (2006), each time with

the intent to steal.No. 18

‐ 1646 Page 3

Handshoe also cites five dated Indiana appellate cases that he believes show that

the state’s burglary statute is broader than generic burglary. But these cases construed

versions of Indiana’s burglary statute that were repealed when Indiana modernized its

criminal code in 1976, long before Handshoe’s first burglary conviction. See I ND

. C ODE

A NN

. § 35

‐ 13

‐ 4

‐ 1. Notably, previous versions were broader than generic burglary

because they explicitly criminalized the breaking and entering of boats, vehicles, or

aircrafts in addition to “any building or structure.” E.g.

, Giles v. State

, 320 N.E.2d 806,

807 (Ind. App. 1979) (quoting I ND

. C ODE § 35

‐ 13

‐ 4

‐ 4). But the legislature dropped

references to vehicles in the 1976 revision, in favor of the narrower “building or

structure” language. I ND

. C ODE § 35

‐ 43

‐ 2

‐ 1 (2018).

Finally, Handshoe contends that the Indiana Supreme Court’s decision to extend

Fourth Amendment protections to tents in Haley v. State

, 696 N.E.2d 98, 102 (Ind. Ct.

App. 1998) supports the inference that Indiana burglary is broader than generic

burglary. This ruling, however, does not bear on the scope of Indiana’s burglary statute.

AFFIRMED