UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-6040

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

STEVE ALLEN JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Big 

Stone Gap. James P. Jones, District Judge. (2:02-cr-10109-JPJ-RSB-1; 2:15-cv-80863-

JPJ-RSB)

Submitted: March 15, 2018 Decided: March 30, 2018

Before NIEMEYER, KING, and KEENAN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Brian J. Beck, Assistant Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for 

Appellant. Rick A. Mountcastle, Acting United States Attorney, Jennifer R. Bockhorst, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Steve Allen Johnson seeks to appeal the district court’s order denying relief on his

28 U.S.C. § 2255 (2012) motion. Johnson pled guilty to being a felon and unlawful 

controlled substance user in possession of a firearm, in violation of 18 U.S.C. 

§ 922(g)(1), (3) (2012). Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. 

§ 924(e) (2012), the district court sentenced Johnson to 180 months’ imprisonment and 3 

years’ supervised release. In his § 2255 motion, Johnson challenged his ACCA sentence 

on the ground that his three pre-1989 Tennessee third-degree burglary convictions were

no longer valid ACCA predicates following Johnson v. United States, 135 S. Ct. 2551 

(2015).1

 See Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (holding Johnson

retroactively applicable to cases on collateral review). Johnson was released from prison 

while his motion was pending before the district court and he is now serving his 

supervised release term. The district court denied relief, holding that while the motion 

was not moot, Johnson’s third-degree burglary convictions remained “violent felonies” 

under the ACCA’s enumerated offense clause, 18 U.S.C. § 924(e)(2)(B)(ii). For the 

reasons that follow, we grant a certificate of appealability, vacate the district court’s 

order, and remand for further proceedings.

As an initial matter, we hold that Johnson’s release does not render this appeal 

moot as he remains on supervised release, and the district court may, in its discretion, 

 1 Johnson sustained these convictions in 1981, 1982, and 1985 after guilty pleas. 

We refer to these convictions as pre-1989 Tennessee third-degree burglaries because the 

Tennessee criminal code was modified in November 1989.
3

alter any aspect of a defendant’s otherwise statutorily mandated sentence, including 

supervised release terms, should it find such relief warranted. United States v. Doe, 810 

F.3d 132, 143 (3d Cir. 2015); see United States v. Springer, 715 F.3d 535, 540 (4th Cir. 

2013) (holding issue of mootness properly raised sua sponte). We therefore proceed to 

the merits of Johnson’s claim.

Johnson may not appeal the district court’s order unless a circuit justice or judge 

issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of 

appealability will not issue absent “a substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the 

merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would 

find that the district court’s assessment of the constitutional claims is debatable or wrong. 

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 

336-38 (2003). When the district court denies relief on procedural grounds, the prisoner 

must demonstrate both that the dispositive procedural ruling is debatable, and that the 

motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 

484-85.

The ACCA applies to violators of 18 U.S.C. § 922(g) (2012) who have at least 

three previous convictions for violent felonies or serious drug offenses committed on 

occasions different from one another. 18 U.S.C. § 924(e)(1). In Johnson, the Supreme 

Court struck down as unconstitutionally vague the ACCA’s residual clause, 18 U.S.C. 

§ 924(e)(2)(B)(ii), which defined “violent felony” to include a crime that “involves 

conduct that presents a serious potential risk of physical injury to another.” 135 S. Ct. at 
4

2555-56, 2561-63. Following Johnson, an offense is a violent felony only if it “has as an 

element the use, attempted use, or threatened use of physical force against the person of 

another” (the “force clause”) or “is burglary, arson, or extortion, [or] involves use of 

explosives” (the “enumerated offense clause”). 18 U.S.C. § 924(e)(2)(B).

Because burglary does not fall under the force clause, Johnson’s sentence remains 

valid only if his Tennessee third-degree burglary convictions fall under the enumerated 

offense clause. An offense qualifies as an enumerated offense only if it is no broader 

than the listed generic federal offense. Descamps v. United States, 570 U.S. 254, 257

(2013). Thus, Johnson must demonstrate that the pre-1989 Tennessee third-degree 

burglary statute is broader than generic burglary in order to prevail on his § 2255 motion. 

A generic burglary offense includes “the following elements: an unlawful or unprivileged 

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). We review de novo whether 

a defendant’s prior offense constitutes a violent felony under the ACCA. United States v. 

Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).

Where an offense’s statute is indivisible—that is, does not list multiple alternative 

elements—we apply the categorical approach, comparing the elements of the offense 

with the elements of the generic crime. Descamps, 570 U.S. at 257. Under this 

approach, the prior conviction qualifies as an ACCA predicate only if the statute’s 

elements are the same as, or narrower than, those of the generic offense; we may not 

analyze underlying facts to determine whether the offense conduct actually met the 

generic definition of the crime. Id. at 257-58. Where the statute is divisible—“sets out 
5

one or more elements of the offense in the alternative”— we apply a modified categorical 

approach, “consult[ing] a limited class of documents, such as indictments and jury 

instructions, to determine which alternative formed the basis of the defendant’s prior 

conviction.” Id. at 257. We then compare the elements of the selected alternative with 

the elements of the generic crime, ignoring the underlying factual basis of the offense. 

Id. at 257, 262-63. The Supreme Court has clarified the difference between alternative 

elements and alternative means, holding that courts should apply the modified categorical 

approach with alternative elements, but the categorical approach with alternative means. 

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

At the time of Johnson’s third-degree burglary convictions, the statute defining the 

offense read as follows:

Third-degree burglary—Safecracking

(a)(1) Burglary in the third degree is the breaking and entering into a 

business house, outhouse, or any other house of another, other than 

dwelling house, with the intent to commit a felony.

(2) Every person convicted of this crime, on first offense, shall be 

imprisoned in the penitentiary for not less than three (3) years nor more 

than ten (10) years.

. . .

(b)(1) Any person who, with intent to commit crime, breaks and enters, 

either by day or by night, any building, whether inhabited or not, and opens 

or attempts to open any vault, safe, or other secure place by any means, 

shall be punished by imprisonment for a term of not less than three (3) nor 

more than twenty-one (21) years upon conviction for a first offense, and not 

less than five (5) years nor more than twenty-one (21) years upon 

conviction for a second or subsequent offense.
6

Tenn. Code Ann. § 39-3-404 (1982) (repealed).2

We conclude that Johnson’s motion states a debatable claim of the denial of a 

constitutional right. See Slack, 529 U.S. at 484. The state statute at issue is divisible 

because third-degree burglary and safecracking are separate offenses with different 

punishments. Compare Tenn. Code Ann. § 39-3-404(a)(2) (1982) (repealed), with § 39-

3-404(b)(1) (repealed); see Mathis, 136 S. Ct. at 2256 (holding statutory alternatives with 

different punishments are elements, giving rise to modified categorical approach). 

Applying the modified categorical approach, review of the elements in Johnson’s thirddegree burglary indictments reveals that he was convicted under the third-degree burglary

provision and not the safecracking provision. See Descamps, 133 S. Ct. at 2290 (“A 

prosecutor charging a violation of a divisible statute must generally select the relevant 

element from its list of alternatives.”).

Thus, Johnson’s convictions in question constitute ACCA predicates only if the 

third-degree burglary provision is no broader than generic burglary. In Fox v. State, 383 

S.W.2d 25, 27 (Tenn. 1964), the Tennessee Supreme Court held that “Defendants could 

lawfully enter [a] telephone booth, which is a business house within the meaning of [the 

former version of § 39-3-404], but by breaking into the money receptacle after lawful 

entry they would be guilty of burglary in the third degree.” Fox’s holding specifically 

 2 The 1975 version of the statute, which controlled Johnson’s 1981 conviction,

contained the same offense descriptions with slightly different punishments and did not 

use subsections. Tenn. Code Ann. § 39-904 (1975) (repealed).
7

applies to the third-degree burglary provision and not the safecracking provision. See id; 

Tenn. Code Ann. § 39-904 (1955) (repealed). Pursuant to Fox, the third-degree burglary 

provision is broader than generic burglary because it encompasses entering into a 

building lawfully and breaking a receptacle within.3

 See Taylor, 495 U.S. at 598

(identifying unlawful or unprivileged entry as element of generic burglary).

The Sixth Circuit Court of Appeals has upheld ACCA designations based on pre1989 Tennessee third-degree burglary convictions in United States v. Caruthers, 458 F.3d 

459 (6th Cir. 2006), and United States v. Taylor, 800 F.3d 701 (6th Cir. 2015), but neither 

case was analyzed in light of Descamps and Mathis. In both Caruthers and Taylor, rather 

than applying the modified categorical approach and comparing the applicable 

provision’s elements with those of the generic offense, the court turned to the judicial 

record to conclude that the movants were in fact convicted of generic burglary because 

they unlawfully broke and entered into a building—a flawed procedure under Descamps

and Mathis. See Taylor, 800 F.3d at 719-20; Caruthers, 458 F.3d at 475-76.

We conclude that pre-1989 Tennessee third-degree burglary is broader than 

generic burglary, and therefore Johnson’s three burglary convictions are not proper 

ACCA predicates under either the enumerated offense clause or the now-defunct residual 

clause. Accordingly, we grant a certificate of appealability, vacate the district court order

 3 The Tennessee Supreme Court has never overruled Fox. 
8

denying Johnson’s § 2255 motion, and remand for further proceedings.4

 On remand, the 

district court may address the issues, including timeliness and procedural default, that the 

Government raised below but that the court declined to address in view of its conclusion 

that the substantive claim lacked merit. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the materials before this court and 

argument would not aid the decisional process.

VACATED AND REMANDED

 4 While we typically order additional briefing upon granting a certificate of 

appealability, see 4th Cir. R. 22(a)(1)(B), in this case, we find additional briefing 

unnecessary because both parties have already filed briefs on the sole issue on appeal.